Mahmood I. Alyshah v. State of Georgia , 239 F. App'x 473 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 11, 2007
No. 06-15328 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00930-CV-TWT-1
MAHMOOD I. ALYSHAH,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
COUNTY OF GWINNETT, GA,
COUNTY OF DEKALB, GA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 11, 2007)
Before DUBINA, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Mahmood I. Alyshah, proceeding pro se, appeals the district court’s
dismissal of his lawsuit complaint against the State of Georgia. Alyshah asserted
several state-law tort claims, claims pursuant to 42 U.S.C. §§ 1981, 1983, 1986,
and 1988, and violations of the First, Fifth, and Fourteenth Amendments. The
district court dismissed the case, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure 12. The court concluded that Alyshah’s federal claims were
barred by Eleventh Amendment immunity, and his state tort claims were barred by
both sovereign immunity and the Eleventh Amendment. On appeal, Alyshah
contends that the district court’s dismissal based on Eleventh Amendment
immunity and sovereign immunity was error.1 After review, we affirm.
We review a district court’s order granting a motion to dismiss de novo.
Popowski v. Parrott, 461 F.3d 1367, 1372 (11th Cir. 2006). The allegations in the
complaint are accepted as true and construed in the light most favorable to the
plaintiff. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187
(11th Cir. 2004).
1
We will not consider Alyshah’s argument, raised for the first time in his reply brief, that
the district court erred by dismissing his case while his motion to recuse the district court judge was
pending. Cf. United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005) (holding that
argument, raised for the first time in reply brief, was deemed abandoned), cert. denied, 126 S. Ct.
2966 (2006). Likewise, Alyshah raises no arguments regarding the dismissal of Appellees DeKalb
and Gwinnett Counties, and he has abandoned any such claims. Id.
2
“The Eleventh Amendment to the Constitution bars federal courts from
entertaining suits against states.” Abusaid v. Hillsborough County Bd. of County
Comm’rs, 405 F.3d 1298, 1302 (11th Cir. 2005). “[I]n the absence of consent[,] 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 School &
Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984).
The Amendment provides that:
The Judicial power of the United States shall not be construed to
extend to any suit in law of 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. “Although, by its terms, the Eleventh Amendment does
not bar suits against a state in federal court by its own citizens, the Supreme Court
has extended its protections to apply in such cases.” Abusaid, 405 F.3d at 1303.
The Eleventh Amendment is no bar, however, where (1) the state consents to suit
in federal court, or (2) where Congress has abrogated the state’s sovereign
immunity. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304
(1990).
Here, the Georgia Tort Claims Act specifically preserves the State of
Georgia’s sovereign immunity from suits in federal courts. See O.C.G.A. §
50-21-23(b). Although the State of Georgia has given its consent to being sued in
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contract or tort actions in its own state courts, a state’s consent to suit in state court
does not constitute a waiver of immunity in federal court. Id.; Robinson v. Georgia
Dept. of Transp., 966 F.2d 637, 640 (11th Cir. 1992). As for congressional
abrogation, we have held that Congress did not intend to abrogate the states’
Eleventh Amendment immunity in passing § 1983. Robinson, 966 F.2d at 640.
Accordingly, the district court did not err by granting the State of Georgia’s
motion to dismiss both the federal and state claims against it based on Eleventh
Amendment immunity. The State of Georgia has not consented to being sued in
federal court nor has Congress abrogated the state’s Eleventh Amendment
immunity.
AFFIRMED.
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