Akeredolu v. Eastern Nebraska Veterans Home et al

Filing 13

MEMORANDUM AND ORDER that the defendants' motion to dismiss 7 is granted. Plaintiff may file a motion for leave to amend her complaint, if any, on or before March 3, 2016. Failure to file a motion for leave to amend her complaint on or before March 3, 2016 may result in a final dismissal of the plaintiff's complaint without prejudice and without further notice. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OLUYINKA I. AKEREDOLU,
Plaintiff,
vs.
EASTERN NEBRASKA VETERANS
HOME, AND NEBRASKA HEALTH
AND HUMAN SERVICES,

8:15CV130
MEMORANDUM AND ORDER

Defendants.
Oluyinka I. Akeredolu is suing the Eastern Nebraska Veterans Home,
and the Nebraska Department of Health and Human Services under Title VII
of the Civil Rights Act, 42 U.S.C. §2000e et seq., and 42 U.S.C. §§ 1981 and
1983. Filing 1. The defendants have moved to dismiss these claims based on
the doctrine of sovereign immunity pursuant to the Eleventh Amendment to
the United States Constitution. Filing 7. For the reasons set forth below, the
motion to dismiss is granted, but plaintiff will be given until March 3, 2016 to
file a motion for leave to amend her complaint.
BACKGROUND
Akeredolu, an African American of Nigerian descent, was employed as
a Staff Care Technician II at the Eastern Nebraska Veterans Home from
June 2008 to June 2013. Filing 1, ¶10 at CM/ECF p. 2. Akeredolu alleges her
supervisors removed her from caring for a patient because the patient stated
she “did not like black people and did not like people taking care of her.”
Filing 1, ¶12 at CM/ECF p. 3. Akeredolu further alleges she was “subjected
[to] write ups and counselings based on unsubstantiated, false, and baseless
accusations.” Filing 1, ¶13 at CM/ECF p. 3. She also alleges she was fired in
retaliation for complaints she expressed against the Director of Nursing.
Akeredolu asserts defendants’ actions violated her civil rights and her right
to due process. She seeks damages in the form of back pay, front pay, and
attorney fees.
ANALYSIS
“[A]bsent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal
court.” Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also, Pennhurst

State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Nix v. Norman,
879 F.2d 429, 431 (8th Cir. 1989). Any award of retroactive monetary relief
payable by the state, including for back pay or damages, is proscribed by the
Eleventh Amendment absent a waiver of immunity by the state or an
override of immunity by Congress. See, e.g., Hadley v. North Arkansas Cmty.
Technical Coll., 76 F.3d 1437, 1438 (8th Cir. 1996), cert. denied, 519 U.S.
1148 (1997); Hans v. Louisiana, 134 U.S. 1, 15 (1890); Nevels v. Hanlon, 656
F.2d 372, 377-78 (8th Cir. 1981).
In this case, Akeredolu has named only the Nebraska Department of
Health and Human Services (a state agency) and the Eastern Nebraska
Veterans Home (a part of the Nebraska Department of Health and Human
Services) as defendants. She seeks nothing but monetary damages for past
alleged violations of Nebraska law. There is nothing in the record before the
Court showing that the State of Nebraska waived, or that Congress overrode,
Nebraska’s sovereign immunity under such circumstances. Accordingly, the
Eleventh Amendment precludes plaintiff’s asserted claims.
In plaintiff’s reply brief she suggests the complaint could be easily
amended to cure the defect by adding the “individual managers and
supervisors who violated her rights as protected by §1983.” Filing 9 at
CM/ECF p. 2. The local rules of this Court set forth the procedure for
amending pleadings. See NECivR 15.1. “A party who moves for leave to
amend a pleading (including a request to add parties) must file as an
attachment to the motion an unsigned copy of the proposed amended
pleading that clearly identifies the proposed amendments.” NECivR. 15.1(a).
Plaintiff’s reply brief did not contain a proposed amended complaint;
therefore, it will not be considered a motion for leave to amend. However, in
the interests of justice, the plaintiff may file a motion for leave to amend her
complaint, if any, on or before March 3, 2016.
IT IS ORDERED:
1.

Defendants’ motion to dismiss (filing 7) is granted.

2.

Plaintiff may file a motion for leave to amend her complaint, if
any, on or before March 3, 2016.

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3.

Failure to file a motion for leave to amend her complaint on or
before March 3, 2016 may result in a final dismissal of the
plaintiff’s complaint without prejudice and without further
notice.

Dated this 1st day of February, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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