United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
Pulaski moves to dismiss Plaintiff Schwarz's claims for
negligence and deliberate indifference to serious medical
needs. For the following reasons, that motion (Doc. 7) is
Schwarz alleges that he applied to work as a counselor at
Pulaski State Prison in September 2018 and that his
application was rejected on November 16, 2018. Doc. 1 at 1-2.
He alleges Pulaski is a women's prison and has hired
women “almost exclusively.” Id. at 2.
Liberally construed, he believes that Pulaski declined to
hire him because he is male, and thus he brings suit under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. Id. at 2-3. In addition, he
“alleges DELIBERATE INDIFFERENCE and NEGLIGENCE”
because Pulaski does not provide adequate psychiatric care to
its inmates. Id. at 6. The Court will construe this
sentence as an attempt to raise a claim under 42 U.S.C.
§ 1983 for violation of the inmates' Eighth
Amendment rights and a state law claim for negligence. He
requests that the Court enter an injunction requiring Pulaski
to hire him and award $15, 000 “to compensate him for
the delay in approving his application.” Id.
at 2-3, 6. Pulaski now moves to dismiss. Doc. 7.
Federal Rules of Civil Procedure require that a pleading
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To avoid dismissal pursuant to
Rule12(b)(6), a complaint must contain sufficient factual
matter 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)). A claim is
facially plausible “when the court [can] draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Fed.R.Civ.P.
12(b)(6)). “Factual allegations that are merely
consistent with a defendant's liability fall short of
being facially plausible.” Chaparro v. Carnival
Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal
quotation marks and citations omitted).
motion to dismiss stage, “all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are
construed in the light most favorable to the
plaintiff.” FindWhat Inv'r Grp. v. FindWhat.
com., 658 F.3d 1282, 1296 (11th Cir. 2011) (internal
quotation marks and citations omitted). But “conclusory
allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent
dismissal.” Wiersum v. U.S. Bank, N.A., 785
F.3d 483, 485 (11th Cir. 2015) (internal quotation marks and
citation omitted). The complaint must “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 550
U.S. at 555 (internal quotation marks and citation omitted).
Where there are dispositive issues of law, a court may
dismiss a claim regardless of the alleged facts. Patel v.
Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321
(11th Cir. 2018) (citations omitted).
argues that because it is an arm of the state, state
sovereign immunity bars the negligence claim. Doc. 7 at 4.
Pursuant to the Georgia Tort Claims Act (GTCA), the state has
waived sovereign immunity for the torts of state officers and
employees acting within the scope of their official duties,
but only if the would-be plaintiff provides ante litem
notice. O.C.G.A. § 50-21-26(a). Schwarz did not allege
in his complaint that he had given ante litem notice, and he
does not now argue that he did.
Schwarz cites Lapides v. Bd. of Regents of Univ. Sys. of
Georgia, 535 U.S. 613 (2002) for the proposition that a
state defendant that removes to federal court waives its
Eleventh Amendment immunity. However, the Court in
Lapides considered only “the context of
state-law claims, in respect to which the State has
explicitly waived immunity from state-court
proceedings.” Lapides, 535 U.S. 613 at 617-18
(2002). Here, the state entity did not waive its immunity in
state court, because Schwarz did not comply with the GTCA. So
even if Pulaski's removal to federal court waived its
immunity to suit in a federal forum, removal did not waive
Pulaski's defense of sovereign immunity on the negligence
claim. See Stroud v. McIntosh, 722 F.3d 1294, 1301
(11th Cir. 2013) (“a state, if it chooses, can retain
immunity from liability for a particular claim even if it
waives its immunity from suit in federal courts.”);
Green v. Graham, 906 F.3d 955, 960 (11th Cir. 2018)
(discussing Stroud); Beaulieu v. Vermont,
807 F.3d 478, 486-87 (2d Cir. 2015). The claim remains barred
by sovereign immunity.
even if it were not barred by immunity, the negligence claim
is cursory and clearly fails to state a claim. The entirety
of the negligence claim is contained in the sentence:
“the Plaintiff here alleges DELIBERATE INDIFFERENCE and
NEGLIGENCE by Administrators of the Mental Health system at
Pulaski State Prison, and is specifically complaining about
this here and is requesting the following remedial
action.” Doc. 1-2 at 6. Schwarz makes no allegation of
what duty these “Administrators” owed him, how
they were negligent, what injuries he suffered, or of
causation. For those reasons, the claim should be dismissed.
deliberate indifference claim is also subject to dismissal.
Pulaski argues in its reply brief that Schwarz lacks standing
to raise the deliberate indifference claim. Doc. 11 at 5-6.
Schwarz responds by arguing he may bring the deliberate
indifference claim under the doctrine of third-party
standing. Doc. 13 at 5-7. That argument clarifies that the
deliberate indifference claim concerns not Schwarz's own
interests, but the interests of the inmates.
courts must hesitate before resolving a controversy, even one
within their constitutional power to resolve, on the basis of
the rights of third persons not parties to the litigation.
The reasons are two. First, the courts should not adjudicate
such rights unnecessarily, and it may be that in fact the
holders of those rights either do not wish to assert them, or
will be able to enjoy them regardless of whether the in-court
litigant is successful or not. Second, third parties
themselves usually will be the best proponents of their own
rights. The courts depend on effective advocacy, and
therefore should prefer to construe legal rights only when
the most effective advocates of those rights are before them
. . . Ordinarily, one may not claim standing in [federal
courts] to vindicate the constitutional rights of some third
party.” Singleton v. Wulff, 428 U.S. 106,
113-14 (1976) (plurality opinion) ...