Lutgen v. South Dakota Department of Social Services

Filing 23

ORDER granting 5 Motion to Dismiss S.D. Department of Social Services; denying as moot 15 Motion to Dismiss. Signed by Chief Judge Karen E. Schreier on 9/28/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KATHY LUTGEN,
Plaintiff,
vs.
SOUTH DAKOTA DEPARTMENT
OF SOCIAL SERVICES and
CINDY CIHAK in her official and
individual capacity,
Defendants.

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CIV. 12-4030-KES

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
SOUTH DAKOTA DEPARTMENT OF
SOCIAL SERVICES

Plaintiff, Kathy Lutgen, brought a claim against defendants, South
Dakota Department of Social Services (DSS) and Cindy Cihak in her official and
individual capacity, alleging that they violated Lutgen’s rights under Title I of
the Americans with Disabilities Act of 1990 (ADA). DSS moves to dismiss the
claims against it for lack of subject matter jurisdiction, or alternatively, for
failure to state a claim, claiming sovereign immunity. Lutgen opposes the
motion. For the following reasons, the motion to dismiss is granted.
BACKGROUND
The pertinent facts, according to the amended complaint (Docket 13), are
as follows:
DSS is a government department of the state of South Dakota responsible
for the Human Services Center located in Yankton, South Dakota. Lutgen is a

person with disabilities who began working at the Human Services Center on
September 11, 2006.
Lutgen’s employment with the Human Services Center was terminated
while she was in treatment for cancer. Lutgen alleges that such termination was
a direct result of her disabilities. She also alleges that the Human Services
Center failed to adequately accommodate her disabilities throughout her
employment there.
STANDARD OF REVIEW
The motion to dismiss before the court is brought pursuant to both Rule
12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to
state a claim upon which relief can be granted. As DSS argues in its brief, the
Rule 12(b)(1) challenge is a facial attack on Lutgen’s claim. Docket 6 at 5-6. “A
motion to dismiss for lack of jurisdiction under Rule 12(b)(1) which is limited to a
facial attack on the pleadings is subject to the same standard as a motion
brought under Rule 12(b)(6).” Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th
Cir. 2003). A Rule 12(b)(6) motion to dismiss requires the court to accept as true
all factual allegations contained in a complaint and review the complaint to
determine whether its allegations show that the pleader is entitled to relief.
Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). All
inferences must be viewed in favor of the nonmoving party. Strand v. Diversified
Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004). The complaint “should

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not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Rucci v. City of Pacific, 327 F.3d 651, 652 (8th Cir. 2003) (citation
omitted).
ANALYSIS
DSS argues that Lutgen’s claim against it, regardless of the relief sought,
is barred by sovereign immunity and the Eleventh Amendment. “The ultimate
guarantee of the Eleventh Amendment is that nonconsenting States may not be
sued by private individuals in federal court.” Bd. of Tr. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001). Absent state consent or congressional
abrogation, “a suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
There is no indication that South Dakota or DSS has consented to this
lawsuit,1 and, thus, abrogation by Congress is required to bypass the protection
afforded to DSS by the Eleventh Amendment. See id. “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 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)).
There is no doubt that Congress unequivocally intended to abrogate states’

1

Lutgen does not argue that consent applies here.
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Eleventh Amendment immunity under the ADA. See Tennessee v. Lane, 541 U.S.
509, 518 (2004); Garrett, 531 U.S. at 364. The issue, then, is whether Congress
acted pursuant to a valid grant of constitutional authority when it subjected
states and their agencies to suits in federal court under the ADA. Garrett, 531
U.S. at 364.
As noted in Garrett, “Congress may subject nonconsenting States to suit in
federal court when it does so pursuant to a valid exercise of its § 5 [of the
Fourteenth Amendment] power.” 531 U.S. at 364. In Garrett, the Supreme Court
“concluded that Title I of the ADA was not a valid exercise of Congress’s § 5
power to enforce the Fourteenth Amendment’s prohibition on unconstitutional
disability discrimination in public employment.” Lane, 541 U.S. at 521. Because
Lutgen’s employment claim arises under Title I of the ADA,2 Lutgen cannot
successfully assert that congressional abrogation applies here.
Lutgen argues that under the Ex parte Young doctrine, the Eleventh
Amendment is not applicable when a plaintiff seeks prospective injunctive relief
against state officers in their official capacities. See Ex parte Young, 209 U.S.
123, 167-68 (1908). The DSS, however, is a state agency, and it is well known
that the Ex parte Young doctrine “has no application in suits against the States
and their agencies, which are barred regardless of the relief sought.” Puerto Rico

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Lutgen’s claim is based entirely on employment discrimination on the
basis of disability. Thus, it falls under Title I of the ADA. See 42 U.S.C.
§§ 12111-12117. Lutgen recognizes this in her brief. Docket 18 at 4.
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Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
Thus, the Ex parte Young doctrine is inapplicable here.3
The court finds that DSS is afforded sovereign immunity from Lutgen’s
claims against it, regardless of the relief sought.
CONCLUSION
DSS has effectively asserted its sovereign immunity defense. Neither South
Dakota nor DSS consented to waive immunity here. Congress has not abrogated
states’ sovereign immunity from claims brought under Title I of the ADA. The Ex
parte Young doctrine does not apply when a prospective injunction is sought
against a state or state agency, regardless of the relief sought. The court,
therefore, finds that DSS is immune from Lutgen’s claims. Accordingly, it is
ORDERED that defendant’s motion to dismiss South Dakota Department
of Social Services (Docket 5) is granted.
IT IS FURTHER ORDERED that defendant’s renewed motion to dismiss
(Docket 15) is denied as moot.
Dated September 27, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
3

The Ex parte Young doctrine may very well be applicable against a state
officer acting in his or her individual capacity. See Garrett, 531 U.S. at 374 n.9.
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