SHARON LOVELACE BLACKBURN, Chief District Judge.
This case is presently before the court on defendant's Motion to Dismiss, (doc. 4),
Defendant, Alabama Department of Corrections, employed plaintiff, a white male, at the Tutwiler Women's prison facility. (Doc. 3 ¶¶ 2-3 and 5.) Defendant ordered plaintiff to transfer to a men's prison facility. (Id. ¶ 5.) Plaintiff told his supervisor that he could not work at a men's prison "due to security risks." (Id.) Despite plaintiff's concerns, defendant transferred plaintiff and plaintiff resigned. (Id.) He contends the transfer order was a constructive discharge. (Id.)
After plaintiff resigned, he was replaced by an African-American employee with less experience. (Id.) The decisionmakers were African-American. (Id.)
In its Motion to Dismiss, defendant contends —
(Doc. 4 ¶ 3.)
Defendant has not submitted any evidence to support its version of plaintiff's employment history, and the court has not converted its Motion to Dismiss to a Motion for Summary Judgment. Therefore, the court considers only the facts set forth in plaintiff's Amended Complaint.
Plaintiff filed a Complaint against Richard Allen, Commissioner of the Alabama Department of Correction, on December 22, 2011. (Doc. 1.) The Complaint contained one count for race discrimination in violation of 42 U.S.C. § 1981. (Id. ¶ 10.) However, at the beginning of his Complaint, he stated, "This is an action for civil rights discrimination and retaliation, and is brought pursuant to "Title VII, Section 704(a), 42 U.S.C. Section 2000e-3[(a)] of the Civil Rights Act of 1964, and 42 U.S.C. Section 1981." (Id. ¶ 1.) Plaintiff amended his Complaint "to remove `Commissioner Richard Allen' as a defendant, and to leave only `Alabama Department of Corrections." (Doc. 3 at 1.) He did not amend the jurisdictional paragraph or add a Title VII count. (See id. ¶¶ 1, 10.)
Defendant moves to dismiss plaintiff's Amended Complaint on the following grounds:
(Doc. 4 ¶ 4.)
Plaintiff does not oppose defendant's Motion to Dismiss his Title VII claim. (See generally doc. 7.) Assuming plaintiff has asserted such a claim,
Defendant moves to dismiss plaintiff's § 1981 claim on the ground that it is entitled to Eleventh Amendment Immunity.
The Eleventh Amendment to the United States Constitution provides: "The 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. This Amendment bars suits against the State brought by its own citizens as well as suits brought by the citizens of another State. See Edelman v. Jordan, 415 U.S. 651, 663 (1974).
"Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, . . . a State cannot be sued directly in its own name regardless of the relief sought." Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)(citing Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam )). "Unlike Title VII, Section 1981 contains no congressional waiver of the state's eleventh amendment immunity." Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir. Unit A June 1981).
In response to defendant's Motion to Dismiss, plaintiff states, "[T]he Defendant's motion to dismiss concerning the state's immunity from federal claims brought under Section 1981 [is] well-taken." (Doc. 7 ¶ 2.) He asks the court for leave to file an second Amended Complaint naming the individual decisionmakers as defendants. (Id. ¶ 3.) Defendant objects to plaintiff's request to file an amended complaint, on the ground that Commissioner Allen was dismissed with prejudice. (Doc. 8 ¶ 1.) Plaintiff contends that he does not seek to re-allege a claim against Commissioner Allen; he contends that his "amended complaint against individual Defendants [would] not concern the state of Alabama, [would be] within the statutory time frame for bringing such claims under 42 U.S.C. Section 1983, and would not cause the Defendant any undue prejudice." (Doc. 9 ¶ 3.)
The Eleventh Circuit has held:
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005).
In plaintiff's proposed Second Amended Complaint he alleges claims against Commissioner Allen and the Department of Corrections, as well as James Deloach and Frank Albright. (See generally doc. 10-1.).
Plaintiff alleges a claim for reverse discrimination in violation of § 1981 against the Department of Corrections. The Department of Corrections has Eleventh Amendment immunity from this claim. Therefore, plaintiff's Motion for Leave to Amend Complaint to reassert a claim against the Department of Corrections for violation of § 1981 will be denied.
Plaintiff has also included a claim against Commissioner Allen for race discrimination in violation of § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Defendant contends that these claims were dismissed
Plaintiff's prior dismissal of his claim against Commissioner Allen was without prejudice. Therefore, it provides no bar to plaintiff's Motion for Leave to Amend seeking to reassert such claim.
The court finds no good cause for denying plaintiff an opportunity to amend his Amended Complaint to assert a claim for race discrimination against the individual decisionmakers. Plaintiff's Motion for Leave to Amend, (doc. 10), will be granted as to plaintiff's request to add a claim against Commissioner Allen, and the other individual defendants. However, this Amended Complaint shall set forth specific facts concerning the circumstances of his transfer and why plaintiff felt compelled to resign.