Leighton v. State of Nebraska et al

Filing 13

MEMORANDUM AND ORDER - Defendants' Motion to Dismiss (Filing No. 6 ) is granted. This case is dismissed without prejudice. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHAYNA LEIGHTON,
Plaintiff,

4:14CV3202

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA, and
DEPARTMENT OF CORRECTIONAL
SERVICES OF NEBRASKA,
Defendants.

This matter is before the Court on the Motion to Dismiss (Filing No. 6) submitted
by Defendants State of Nebraska (“Nebraska”) and the Department of Correctional
Services of Nebraska (“NDCS”) (collectively “Defendants”). For the reasons stated
below, Defendants’ Motion will be granted.
BACKGROUND
Plaintiff Shayna Leighton (“Leighton”) filed a Complaint pursuant to the
Americans with Disabilities Act of 1990, (“ADA”), 42 U.S.C. §§ 12101-12213 (2012), and
§ 504 of the Rehabilitation Act of 1973, 29 U.S.C §§ 701-796 (2012).
In her Complaint (Filing No. 1-1), Leighton alleges that she was employed by
NDCS from March 18, 2013, to September 1, 2013. She contends that she had a
disability, but was qualified to continue her employment. She asserts that, because of
her disability, she was harassed and subjected to discrimination, and her employment
was terminated. She also claims that Defendants retaliated against her after she
complained about her hostile work environment. Leighton seeks damages for her
injuries, including, lost wages, lost benefits, emotional distress, and continued suffering.

STANDARD OF REVIEW
A motion under Federal Rule of Civil Procedure 12(b)(1)1 challenges whether the
Court has subject matter jurisdiction to hear the case. The party attempting to invoke a
federal court’s jurisdiction bears the burden of establishing that jurisdiction exists. Miller
v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 933-34 (8th Cir. 2012) (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998)); Great Rivers Habitat
Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). The Court has “wide discretion” to
decide the process with which its jurisdiction can best be determined. Johnson v. United
States, 534 F.3d 958, 964 (8th Cir. 2008) (quoting Holt v. United States, 46 F.3d 1000,
1003 (10th Cir. 1995)) (internal quotation marks omitted). It “has the authority to dismiss
an action for lack of subject matter jurisdiction on any one of three separate bases: ‘(1)
the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.’” Id. at 962 (quoting Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981)); see also Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (stating
that “[m]otions to dismiss for lack of subject-matter jurisdiction can be decided in three
ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a
summary judgment motion; and on disputed facts”).

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The Supreme Court has stated that “[t]he Eleventh Amendment restricts the judicial power
under Article III . . . .” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 45 (1996), and the Eighth Circuit
stated that “[s]overeign immunity is a jurisdictional question.” Hagen v. Sisseton-Wahpeton Cmty. Coll.,
205 F.3d 1040, 1043 (8th Cir. 2000) (alterations in original) (quoting Rupp v. Omaha Indian Tribe, 45 F.3d
1241, 1244 (8th Cir. 1995)). Defendants moved to dismiss Leighton’s claims under Fed. R. Civ. P.
12(b)(1), lack of subject-matter jurisdiction and 12(b)6, failure to state a claim upon which relief can be
granted. In their brief (Filing No. 7), Defendants only argue that Leighton’s claims are barred by the
doctrine of sovereign immunity. Accordingly, the Court will conduct its review under 12(b)(1).

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DISCUSSION
Generally, the Eleventh Amendment bars suits in federal court by private
individuals against nonconsenting States. Bd. of Trustees of Univ. of Ala. v. Garrett, 531
U.S. 356, 363 (2001). This bar applies to both states and state agencies. Doe v.
Nebraska, 345 F.3d 593, 597 (8th Cir. 2003). Actions by private individuals against
States in federal court are not barred by sovereign immunity when either (i) Congress
validly abrogates States’ immunity, see Garrett, 531 U.S. at 363, or (ii) States waive
sovereign immunity. See Doe, 345 F.3d at 597. The Supreme Court recognized that
“Congress may abrogate the States' Eleventh Amendment immunity when it both
unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional
authority.’” Garrett, 531 U.S. at 363 (alternations in original) (quoting Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73 (2000)). “To waive sovereign immunity, a state must make a
clear, unequivocal statement that it wishes to do so.” Faibisch v. Univ. of Minn., 304
F.3d 797, 800 (8th Cir. 2002). “A state may waive its immunity either by explicitly
specifying its intention to subject itself to suit or by voluntarily participating in federal
spending programs where Congress expressed a clear intent to condition receipt of
federal funds on a state's consent to waive its sovereign immunity.” Doe, 345 F.3d at
597.
Leighton’s Claim Under the ADA
Leighton references the ADA in her Complaint,2 but she does not expressly state
that she intends to bring a claim under the ADA. Title I of the ADA prohibits employers

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(See Filing No. 1-1 at ¶¶ 10-11) (“[Leighton] advised [Warden Michael Kenney] that she would
not [look for a different job due to her seizures], due to it being a violation of the Americans With

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from “discriminat[ing] against a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112 (a). If Leighton did intend to assert a claim under Title
I of the ADA, it is barred by the Eleventh Amendment.
Leighton does not argue that Defendants waived sovereign immunity nor does
she allege any facts in the Complaint allowing this Court to infer a waiver of sovereign
immunity with respect to her ADA, if any. With regard to abrogation of immunity, there is
no question that Congress expressed a clear intent to abrogate States’ immunity under
the ADA. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in Federal or State
court of competent jurisdiction for a violation of this chapter.”). However, in Garrett, the
Supreme Court held that Congress’s abrogation of immunity for suits brought by state
employees under Title I of the ADA was barred by the Eleventh Amendment because
Congress’s attempt to abrogate State’s immunity was not pursuant to a valid grant of
constitutional authority. 531 U.S. at 360; see also Faibisch, 304 F.3d at 800. “[P]rivate
individuals can sue state officials for injunctive relief under the ADA by using Ex parte
Young.” Gibson v. Arkansas Dep't of Correction, 265 F.3d 718, 722 (8th Cir. 2001).
However, the Ex Parte Young doctrine “does not extend to states or state agencies.”
Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007). NDCS is an agency
of the State of Nebraska. See Perryman v. Nebraska Dep't of Corr. Servs., 568 N.W.2d

Disabilities Act (ADA). . . . That same day, [Leighton] sent an email to the ADA coordinator advising her
about the conversation between [Leighton] and [Warden Michael Kenney].”)

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241, 245 (Neb. 1997) (citing Neb. Rev. Stat. § 83-171 (Nebraska statute creating
NDCS)).
Here, Leighton is suing the State of Nebraska and its agency, NDCS, for
damages based on alleged discrimination arising out of her employment with NDCS.
Under Garrett, Leighton’s claims under Title I of the ADA against Nebraska and NDCS
are barred by the doctrine of sovereign immunity. Accordingly, Leighton’s ADA claim will
be dismissed.
Leighton’s Claim Under § 504 of the Rehabilitation Act
Under § 504 of the Rehabilitation Act, “[n]o otherwise qualified individual with a
disability in the United States, as defined in section 705(20) of this title, shall, solely by
reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance . . . .” 29 U.S.C. § 794 (2012). States that accept funds
under the Rehabilitation Act, “are required by statute to waive their Eleventh
Amendment immunity to § 504 claims.” Doe, 345 F.3d at 598 (citing 42 U.S.C. § 2000d–
7 (“A State shall not be immune under the Eleventh Amendment of the Constitution of
the United States from suit in Federal court for a violation of section 504 of the
Rehabilitation Act . . . or the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.”)) “[T]his waiver of sovereign
immunity is limited and applies only to the individual agency that receives the federal
funds, i.e., a state can avoid waiver by ‘accepting federal funds for some departments
and declining them for others.’” Id. While Nebraska and NDCS may have waived
immunity with respect to claims made under § 504 by NDCS’s acceptance of federal
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funds, Leighton did not show that NDCS did so. Leighton has not offered any evidence
supporting waiver, nor has she alleged any facts in her Complaint to support a finding of
waiver. Accordingly, Leighton’s claims under § 504 will be dismissed.
As stated above, Leighton has the burden to establish that jurisdiction exists in
this case. Miller, 688 F.3d at 933-934; see also Damron v. North Dakota Comm’r of
Corrections, 299 F.Supp.2d 970, 978 (D.N.D. 2004) (“[A] plaintiff wishing to pursue a
Rehabilitation Act claim against the state will need to show that the agency in question
waived its Eleventh Amendment immunity with respect to Section 504 of the
Rehabilitation Act . . . .”). Leighton has not met her burden for claims made pursuant to
the ADA nor has she met her burden for claims made pursuant to § 504 of the
Rehabilitation Act. Defendants’ Motion to Dismiss will be granted. 3 Accordingly,
IT IS ORDERED:
1. Defendants’ Motion to Dismiss (Filing No. 6) is granted;
2. This case is dismissed without prejudice; and
3. A separate judgment will be entered.
Dated this 9th day of March, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

3

In her brief, Leighton argues that “if this Court finds in favor of the Defendants, [Leighton] should
be allowed time to amend her Complaint to conform to this Court’s ruling.” (Filing No. 12.) Requests to
amend pleadings should be made by filing motions in accordance with NECivR 15.1.

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