Budayr v. State of Michigan

Filing 25

ORDER - The court GRANTS defendant's motion to dismiss for lack of subject matter jurisdiction. [DE12]. Plaintiff's motion for summary judgment is DENIED. [DE10]. The clerk is DIRECTED to close this case. Signed by District Judge Louise Wood Flanagan on 12/7/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-327-FL
ABDULFATTAH BUDAYR,
Plaintiff,
v.
STATE OF MICHIGAN, Department of
Licensing and Regulatory Affairs; Bureau
of Professional Licensing,
Defendant.1

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ORDER

This matter is before the court on plaintiff’s motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56, (DE 10), and defendant’s motion to dismiss pursuant to
Rules12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6), (DE 12). The issues raised are ripe for ruling. For
the following reasons, the court denies plaintiff’s motion, grants motion of defendant, and dismisses
the complaint for lack of jurisdiction.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed a complaint on July 3, 2017, seeking an order from this
court pursuant to N.C. Gen. Stat. Ann. § 15A-145.5 2 and, based on the Full Faith and Credit clause

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Defendant is the bureau of professional licensing within the Michigan department of licensing and regulatory
affairs, formerly the Michigan department of community health. (DE 14 at 4).
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This statute provides that “[a]ny other applicable State or local government agency shall expunge from its
records entries made as a result of the conviction ordered expunged under this section upon receipt from the petitioner
of an order entered pursuant to this section. The agency shall also vacate any administrative actions taken against a
person whose record is expunged under this section as a result of the charges or convictions expunged.” N.C. Gen. Stat.
Ann. § 15A-145.5(f) (“North Carolina expunction statute”).

of the United States Constitution, requiring defendant to refrain from posting on its website the
disciplinary action taken against plaintiff concerning his Michigan pharmacy license and to vacate
the same disciplinary action which was based on charges or convictions that have been expunged.
(DE 1).
Plaintiff’s complaint, filed using an Administrative Office of the Court Form, asserts the
basis of this court’s jurisdiction as “federal question.” (Compl. (DE 1 at 3)). When asked to provide
the specific federal authority for the basis of jurisdiction, plaintiff relies on Section 1 of Article IV
of the United States Constitution, prescribing in part that “Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const.
art. IV, § 1 (“Full Faith and Credit Clause”).
On July 26, 2017, plaintiff filed the instant motion for summary judgment, wherein he argues
that pursuant to the North Carolina expunction statute and the Full Faith and Credit Clause,
defendant must remove from its website the disciplinary action taken against plaintiff concerning
his Michigan pharmacy license and vacate the disciplinary action against plaintiff taken by
defendant. On July 27, 2017, defendant filed the instant motion to dismiss, arguing in part that
plaintiff is a private citizen suing a state department and therefore plaintiff’s claims are barred under
the Eleventh Amendment to the United States Constitution and, accordingly, this court lacks subject
matter jurisdiction.3
STATEMENT OF FACTS
The relevant facts taken in light most favorable to plaintiff may be summarized as follows.

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Plaintiff and defendant rely on multiple documents in support of their respective motions. However, because
plaintiff has failed to allege facts upon which subject matter jurisdiction can be based, the court need not need not
consider materials outside the pleadings. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

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Plaintiff lives in North Carolina. (Compl. (DE 1) at 1). Defendant is the bureau of professional
licensing for the state of Michigan. (Id. at 2). Defendant placed an order of summary suspension
on plaintiff’s pharmacist license on June 18, 2004 based on a misdemeanor conviction plaintiff
received in North Carolina. (Id. at 4; DE 11 at 4, 15-42). On October 28, 2016, plaintiff obtained
an expunction of his North Carolina misdemeanor conviction in accordance with the North Carolina
expunction statute. (DE 11 at 4, 43-44). Plaintiff notified defendant that plaintiff’s misdemeanor
had been expunged, but defendant denied plaintiff’s request to expunge from defendant’s records
entries made as a result of the conviction and to vacate the disciplinary action taken against
petitioner’s license, stating that the North Carolina expunction order is not binding on defendant.
(Id. at 4, 45).
DISCUSSION
A.

Standard of Review
A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff

bears the burden of showing that federal jurisdiction is appropriate when challenged by the
defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697 F.2d
at 1219.4 Where, as here, the moving party contends that the complaint “simply fails to allege facts
upon which subject matter jurisdiction can be based,” then “all facts alleged in the complaint are
assumed true.” Adams, 697 F.2d at 1219. “Where the jurisdictional facts are intertwined with the
facts central to the merits of the dispute . . . the entire factual dispute is appropriately resolved only
by a proceeding on the merits,” and Rule 12(b)(1) is “an inappropriate basis” to grant dismissal.

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Because the court determines it lacks jurisdiction, it is unnecessary to address defendant’s other arguments
for dismissal including lack of person jurisdiction over defendant pursuant to Rule 12(b)(2) and for improper venue
pursuant to Rule 12(b)(3). For similar reasons, it is unnecessary to address plaintiff’s arguments found in plaintiff’s
motion for summary judgment.

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Adams, 697 F.2d at 1219–20.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint but
“does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992); see also Edwards
v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.1999). A complaint states a claim under
12(b)(6) if it contains “sufficient factual matter, accepted as true, 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)). “Asking for plausible grounds ... does not impose a
probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal [the] evidence” required to prove the claim. Twombly, 550
U.S. at 556.
In evaluating the complaint, the “court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements
of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted
inferences,

unreasonable

conclusions,

or

arguments.”

Nemet

Chevrolet,

Ltd.

v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
When considering a Rule 12(b)(6) motion, a court must keep in mind the principle that “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) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); Noble v. Barnett, 24 F.3d 582, 587 n. 6 (4th Cir.1994).
Nevertheless, Erickson does not undermine the requirement that a pleading contain “more than
labels and conclusions.” Giarratano v. Johnson, 521 F.3d 298, 304 n. 5 (4th Cir. 2008) (quoting

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Twombly, 550 U.S. at 555).
B.

Analysis
The Fourth Circuit has not definitively ruled on whether dismissal on Eleventh Amendment

grounds is properly based on Rule 12(b)(1) or 12(b)(6). See Andrews v. Daw, 201 F.3d 521, 525
n. 2 (4th Cir. 2000). The distinction is not material where, as here, a defendant “contend[s] that a
complaint simply fails to allege facts upon which subject matter jurisdiction can be based,” in which
case “all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is
afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.”
Adams, 697 F.2d at 1219; see Kerns v. United States, 585 F.3d 187, 192-93 (4th Cir. 2009).
The Eleventh Amendment provides that “[t]he judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S.
Const., Amend. XI. In addition to the States themselves, the Eleventh Amendment shields
non-consenting state agencies and departments from suits by private individuals in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Defendant is one such
“instrumentality.” See, e.g., Abick v. State of Michigan, 803 F.2d 874, 876 (6th Cir.1986) (“The
law is clear that Michigan and its agency . . . under the eleventh amendment, are immune from an
action for damages or injunctive relief in federal court.”)
There are three exceptions to the Eleventh Amendment’s bar against suits. Lee–Thomas v.
Prince George’s Cnty. Pub. Schs., 666 F.3d 244, 248-49 (4th Cir. 2012). The first applies when an
individual sues “for prospective injunctive relief against state officials acting in violation of federal
law.” Id. (emphasis added)(quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)). This

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exception does not apply here, because the complaint does not name as defendants any state official.
See Lee–Thomas, 666 F.3d at 249.
Second, Congress may abrogate Eleventh Amendment immunity without state consent by
both “unequivocally intend[ing] to do so and act[ing] pursuant to a valid grant of constitutional
authority.” Id. (quoting Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001));
Litman v. George Mason Univ., 186 F.3d 544, 549 (4th Cir.1999). In doing so, Congress acts under
the authority of section 5 of the Fourteenth Amendment. Litman, 186 F.3d at 550. Plaintiff argues
that defendant’s sovereign immunity has been abrogated under the Fourteenth Amendment, but
provides no other support for this argument other than noting defendant has an obligation to
maintain correct records. (DE 18 at 2). Absent congressional action as here, this exception does not
apply.
Third, a state may waive its immunity in federal court. Lee–Thomas, 666 F.3d at 249. Here,
plaintiff is incorrect that“state sovereign immunity does not extend to cases where a plaintiff alleges
the state’s action is in violation of the federal constitution” or that defendant has waived sovereign
immunity via Mich. Comp. Laws § 24.301. (DE 18 at 1). Mich. Comp. Laws § 24.301 provides that
when a person aggrieved by a final decision of an agency in the state of Michigan has exhausted all
administrative remedies available within the agency, they may obtain direct review of that decision
in Michigan courts. Mich. Comp. Laws § 24.301. This law does address Eleventh Amendment
waiver of the state of Michigan and its departments to submit to federal suit in the state of North
Carolina, much less provide a clear and unequivocal waiver of said immunity. See Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (“[I]n order for a state statute or constitutional provision
to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to

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subject itself to suit in federal court.”); see also Williams v. Mich. Bd. of Dentistry, 39 Fed. Appx.
147, 148–49 (6th Cir. 2002) (holding that claims against Michigan agency defendants were barred
by sovereign immunity under the Eleventh Amendment); Proctor v. Bd. of Med., No. 1:16-CV-82,
2017 WL 2972253, at *4 (W.D. Mich. Apr. 13, 2017 ) (holding that claims against Michigan
department of licensing and regulatory affairs, bureau of professional licensing are barred by
sovereign immunity under the Eleventh Amendment).
Even if plaintiff’s claims are not barred by sovereign immunity, plaintiff has failed to invoke
federal question jurisdiction because defendant solely relies on the Full Faith and Credit Clause of
the United States Constitution. See Thompson v. Thompson, 484 U.S. 174, 182-83 (1988) (“. . . the
Full Faith and Credit Clause, in either its constitutional or statutory incarnations, does not give rise
to an implied federal cause of action) (citing Minnesota v. Northern Securities Co., 194 U.S. 48
(1904) (The Full Faith and Credit Clause “only prescribes a rule by which courts, Federal and state,
are to be guided . . . the clause has nothing to do with the conduct of individuals or corporations; and
to invoke the rule which it prescribes does not make a case arising under the Constitution or laws
of the United States.”)).
CONCLUSION
Based on the foregoing, the court GRANTS defendant’s motion to dismiss for lack of subject
matter jurisdiction. (DE 12). Plaintiff’s motion for summary judgment is DENIED. (DE 10). The
clerk is DIRECTED to close this case.
SO ORDERED, this the 7th day of December, 2017.

_______________________
LOUISE W. FLANAGAN
United States District Judge
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