UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMI CLAIRE, KATHRYN LANE,

and AHMIR MURPHY, 

Plaintiffs, 

v. CASE NO.: 4:20-cv-00020-MW-MAF

FLORIDA DEPARTMENT OF 

MANAGEMENT SERVICES, et al., 

Defendants. 

__________________________________________/ 

DEFENDANT, FLORIDA DEPARTMENT OF CORRECTIONS’, 

SECRETARY MARK INCH’S, AND ANDY THOMAS’ AMENDED 

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants, Florida Department of Corrections (“FDC”), Mark Inch, in his 

official capacity as Secretary of the Florida Department of Corrections (“Secretary

Inch”), (collectively “FDC Defendants”) and Andy Thomas, in his official capacity 

as Public Defender of the Second Judicial Circuit of Florida (“Mr. Thomas” or the 

“Public Defender”) through undersigned counsel, pursuant to Rules 15(a) 2, Fed. 

R. Civ. P., and N.D. Fla. Loc. R. 15.1, move this Court to dismiss Counts III, IV, 

VII, and VIII of the Amended Complaint, with prejudice. 

Introduction

The Amended Complaint must be dismissed based on several fundamental 

grounds. Plaintiff Ahmir Murphy brings the following counts against the FDC 

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Defendants: Count IV asserts violations of Title VII by the FDC; and Count VIII, 

brought against Secretary Inch in his official capacity as Secretary of the FDC

pursuant to 42 U.S.C. §1983, asserts violations of the Fourteenth Amendment’s 

Equal Protection Clause.

Similarly, Plaintiff Kathryn Lane brings the following counts against the 

Public Defender: Count III asserts violations of Title VII by the Public Defender; 

and Count VII, brought against the Public Defender in his official capacity

pursuant to 42 U.S.C. §1983, asserts violations of the Fourteenth Amendment’s 

Equal Protection Clause.

Each of these counts must be dismissed with prejudice because Mr. Murphy 

and Ms. Lane (for the purposes of this motion collectively referred to as 

“Plaintiffs”) have failed to demonstrate Article III standing. None of the alleged 

injuries are fairly traceable to, or can be redressed by the FDC or the Secretary of 

FDC or Mr. Thomas. This is because by statute, the Florida Department of 

Management Services (“DMS”) has total control and authority over the provision 

of health insurance for state employees, including the Plaintiffs. As such, the 

actions of the FDC, Secretary Inch and Mr. Thomas are not fairly traceable to the 

harm suffered by the Plaintiffs, which was solely caused by the actions of the DMS

in determining the appropriate level of healthcare for state employees.

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Count VIII, styled as an Ex Parte Young claim for prospective injunctive 

relief from a continuing violation of law against Secretary Inch, also fails because 

it is barred by sovereign immunity. Secretary Inch lacks the authority to actually 

implement or enforce the complained-of policies. This destroys the legal fiction 

that Ex Parte Young provides in very limited cases for litigants to obtain relief 

from states in federal courts in situations where such actions for relief would 

otherwise be barred. This same reason also requires the dismissal of Count VII 

against Mr. Thomas.

Facts

The following facts are taken from the Amended Complaint and in the light 

most favorable to the Plaintiffs. None of the facts recited herein should be deemed 

an admission on the part of the moving parties that they are true. 

Mr. Murphy was born female, but identifies as male. (Doc. 34 p. 38 ¶ 165). 

Ms. Lane was born male, but identifies as female. (Doc. 34 p. 29 ¶ 122). Mr. 

Murphy and Ms. Lane were diagnosed with gender dysphoria at or before the 

alleged constitutional and statutory violations occurred. (Doc. 34 pp. 30, 39 ¶¶ 126, 

171). According to the Amended Complaint, gender dysphoria is a medical 

diagnosis for the “feeling of incongruence between one’s gender identity and one’s 

sex assigned at birth, and the resulting distress caused by that incongruence. . ..” 

(Doc. 34 p. 9 ¶ 25). 

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Mr. Murphy alleges that his treating physician recommended he receive a 

double mastectomy and chest reconstruction and deemed both procedures 

medically necessary to treat his gender dysphoria. (Doc. 34 p. 42 ¶¶ 185, 186). Ms. 

Lane alleges that her treating physician recommended she receive facial 

feminization surgery and deemed it medically necessary to treat her gender 

dysphoria. (Doc. 34 pp. 32-33 ¶¶ 138, 139). 

Mr. Murphy is employed as a correctional sergeant at Homestead 

Correctional Institution in Florida City for the FDC. (Doc. 34 p. 37-38 ¶163). As a 

state employee, his health insurance is provided by the state of Florida through 

AvMed. (Doc. 34 pp. 13-14 ¶¶ 39, 43, 47). Ms. Lane is employed by the Office of 

the Public Defender in the Second Judicial Circuit of Florida, which is headed by 

Mr. Thomas. (Doc. 34 p. 29 ¶ 118). As a state employee, her health insurance is 

provided by the state of Florida through Capital Health Plan (“CHP”). (Doc. 34 

pp.13-14 ¶¶ 39, 43, 46). 

The state health plan is developed, maintained, and provided to state 

employees by DMS. (Doc. 34 p. 13 ¶¶ 40, 41, 42). Under section VI of the health 

insurance plan documents outlining the coverage provided by AvMed there is a 

“Limitations and Exclusions” provision, which states “[t]the following services 

and supplies are excluded from coverage under this Plan unless a specific 

exception is noted. Exceptions may be subject to certain coverage Limitations.” 

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(Doc. 20-1 p. 57). Section VI then goes on to identify 39 different categories of 

limitation and exclusions in the plans, one of which is “gender reassignment or 

modification services and supplies.” (Doc. 20-1 p. 58). 

Likewise, under section VI of the health insurance plan document outlining 

the coverage provided by CHP there is a “Limitations and Exclusion” provision, 

which states “[t]he following services and supplies are excluded from coverage 

under this Plan unless a specific exception is noted. Exceptions may be subject to 

certain coverage Limitations.” (Doc. 19-1 p. 57). Section VI then goes on to 

identify 39 different categories of limitations and exclusion in the plans, one of 

which is “gender reassignment or modification services supplies.” (Doc. 19-1 p. 

58). 

While the Amended Complaint does not include or attach the AvMed or 

CHP plan documents, they are both referred to extensively therein. The Eleventh 

Circuit has instructed that a district court may consider extrinsic evidence in ruling 

on a motion to dismiss if it is (1) central to the plaintiff’s claim, and (2) its 

authenticity is not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 

F.3d 1334, 1337 (11th Cir. 2010); see also Trustmark Ins. Co. v. ESLU, Inc., 299 

F.3d 1265, 1267-68 (11th Cir. 2002). Plaintiffs’ Amended Complaint is centered 

around the state-provided insurance plans and the gender reassignment exclusion. 

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(Doc. 34 p. 15 ¶ 54). Obviously, the plan documents are central to the Amended 

Complaint and their authenticity should not be in question. 

Mr. Murphy alleges that on May 13, 2019, his physician sought 

authorization for Murphy to obtain a double mastectomy. (Doc. 34 p. 44 ¶ 193). 

On May 23, 2019, AvMed denied authorization for coverage citing to the 

exclusion in the state plan for gender reassignment or modification services and 

supplies. (Doc. 34 p. 44 ¶ 194). On May 29, 2019, a different physician sought 

authorization for Mr. Murphy to obtain the procedure. (Doc. 34 p. 44 ¶ 195). On 

June 5, 2019, AvMed denied the second authorization request for coverage citing 

to the exclusion in the state plan for gender reassignment or modification services 

and supplies. (Doc. 34 p. 45 ¶ 196). 

On January 11, 2019, Plaintiff Lane’s physician sent a letter recommending 

that Lane obtain facial feminization surgery. (Doc. 34 p. 33 ¶ 139). CHP denied 

authorization for coverage citing to the exclusion in the state plan for gender 

reassignment or modification services and supplies. (Doc. 34 p. 33 ¶ 140). Ms. 

Lane appealed the denial pursuant to the plan, and CHP again denied the appeal for 

the same reason, as well as for the additional reason that the procedure fell under 

the exclusion for cosmetics surgeries or services. (Doc. 34 p. 33 ¶¶ 141, 142).

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Argument 1

I. Plaintiffs Lack Article III Standing to Sue the FDC Defendants and Mr. 

Thomas 

All of Plaintiffs’ counts against the FDC Defendants and Mr. Thomas must 

be dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P., as this Court lacks subject 

matter jurisdiction over these claims. This is because the Plaintiffs cannot establish 

standing to sue the FDC Defendants or Mr. Thomas. To satisfy the constitutional 

restriction of federal courts’ jurisdiction to “cases” and “controversies,” “a plaintiff 

must demonstrate constitutional standing.” Bank of Am. Corp. v. City of Miami, 

Fla., 137 S. Ct. 1296, 1302 (2017). “Article III standing requires Plaintiff to show 

an ‘injury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and ‘that is 

likely to be redressed by a favorable judicial decision.” Id. The party invoking 

federal jurisdiction bears the burden of proving standing. Hollywood Mobile 

Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1265 (11th Cir. 2000). 

Here, Plaintiffs’ alleged injuries are not fairly traceable to the challenged 

actions of the FDC Defendants or Mr. Thomas. Moreover, a favorable decision by 

this Court on the counts subject to this motion will not result in any remedy that 

the FDC Defendants or Mr. Thomas can provide as a matter of law. Stated another 

way, this Court cannot compel the FDC Defendants or Mr. Thomas to do anything 

 

1 Because this Court is surely well-versed in the standard for adjudicating a motion 

to dismiss, it is omitted.

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that would redress the Plaintiffs’ injuries. Thus, the Plaintiffs cannot establish the 

requisite standing to proceed against the FDC Defendants or the Public Defender

warranting dismissal.

a. Plaintiffs’ Injuries Are Not Fairly Traceable to the FDC Defendants

or the Public Defender.

Article III standing requires “a causal connection between the injury and the 

conduct complained of—the injury has to be fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of some third 

party.” Hollywood Mobile Estates, 641 F.3d at 1265 (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560 (1992)). Here, any injury allegedly suffered by the 

Plaintiffs via denial of coverage for their respective requested procedures, is 

exclusively tied to the independent actions of a third party – DMS. The FDC

Defendants and Mr. Thomas have no control over any aspect of the health 

insurance provided to state employees via the AvMed or CHP state insurance 

plans. 

The Florida Legislature has expressly declared its intent that DMS “shall be 

responsible for all aspects of the purchase of health care for state employees under 

the state group health insurance plan or plans . . .” §110.123(3)(c), Fla. Stat. (2019) 

(emphasis supplied). The responsibilities assigned and limited to DMS by the 

Legislature include the “determination of health care benefits to be provided” and 

the “negotiation of contracts for health care and health care administrative 

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services.” Id.; see also §110.123(5)(a), Fla. Stat. (It is the duty of the DMS to 

“[d]etermine the benefits to be provided and the contributions to be required for the 

state group insurance program”). Plaintiffs acknowledge DMS’s statutory 

responsibilities as to the determination and provision of group health insurance for 

state employees. (Doc. 34 ¶¶ 40-43). To be sure, the FDC and the Public Defender

are both included in the definition of “State Agency” for purposes of the state 

insurance program. §110.123(2)(i), Fla. Stat. The Plaintiffs are full-time employees 

of state agencies as defined in §110.123(2)(c) and §110.123(2)(i), Fla. Stat., and 

have voluntarily elected to participate in the group insurance program offered by 

DMS as an enrollee. §110.123(2)(b) & (c), Fla. Stat. 

Nowhere in the Amended Complaint do the Plaintiffs allege that the FDC

Defendants or the Public Defender have any role in, or authority to, implement the 

state health plans, establish exclusions, solicit or choose providers, enter into 

contracts to establish the state health plans, or otherwise control or influence any 

aspect of the state health plans. Further, there is no allegation in the Amended 

Complaint that the FDC Defendants or the Public Defender were in any way 

involved in the decision to deny the Plaintiffs their requested procedures. 

It was solely DMS’s responsibility to select and define the contours of the 

benefits offered under the state health plan that covered Plaintiffs. Because the 

FDC Defendants and the Public Defender have no involvement in that process, no 

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conduct of the FDC Defendants or the Public Defender is fairly traceable to the 

injury alleged in the Amended Complaint. 

Ultimately, the “fairly traceable” element of Article III standing is 

essentially a threshold showing that there is some causal connection between the 

injury and the actions of the defendants. See Allen v. Wright, 468 U.S. 737, 757 

(1984), abrogated in part on other grounds by Lexmark Int’l., Inc. v. Static Control 

Components, Inc., 572 U.S. 118 (2014) (holding that causation is a distinct 

requirement of standing apart from whether requested relief might substantially 

remedy a threatened constitutional injury). This case is similar to numerous cases 

in which the Eleventh Circuit has found want of facts to establish the “fairly 

traceable” element of Article III standing and a lack of causal connection between 

the conduct alleged on the part of a defendant and the injury suffered. 

For example, in Doe v. Pryor, several plaintiffs sued the Attorney General of 

Alabama to enjoin enforcement of a statute making “deviate sexual intercourse” a 

criminal offense. 344 F.3d 1282, 1285–86 (11th Cir. 2003). While one plaintiff lost 

a custody dispute based on the challenged statute, the Eleventh Circuit held that 

this injury was not “fairly traceable” to the Attorney General because the Attorney 

General played no role in the custody dispute. Id. at 1285. What was lacking in 

Doe is the same as what is lacking here: any connection between the defendant and 

the injury. Id.; see also Hollywood Mobile Estates, 641 F.3d at 1265–67 (holding 

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that injury was not fairly traceable to Secretary of the Interior, where there was no 

allegation that Secretary caused any injury, in that case, a forcible eviction of a 

leased property committed by the Seminole Tribe of Florida); Daogaru v. U.S. 

Attorney Gen., 683 F. App'x 824, 825-26 (11th Cir. 2017) (dismissing federal 

government defendant and finding that defendant’s conduct was not fairly 

traceable to injury in complaint challenging federal firearms law prohibiting the 

plaintiff from possessing a firearm and ammunition in his home, where state law 

independently prohibited plaintiff from possessing a firearm); Allen, 468 U.S. at 

753 n.19 (holding that parents lacked standing to sue the IRS for their children's 

diminished ability to receive an education in a racially integrated school because, 

even though this was a cognizable injury, “whatever deficiencies exist in the 

opportunities for desegregated education for [plaintiffs'] children might not be 

traceable to IRS violations of law”).

The instant matter is unlike the case in Arizona Governing Comm. for Tax 

Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983) 

which found the state of Arizona responsible for a discriminatory fringe benefit 

plan it adopted. In Norris, the plaintiff brought suit against the state of Arizona, the 

Governing Committee responsible for adopting the plan, and several members of 

the Committee. Id. at 1078 (Marshall, J., concurring). Notably, the plaintiff’s 

employer, the Arizona Department of Economic Security, was not itself a 

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defendant. Id. While the Supreme Court did note that “an employer that adopts a 

fringe-benefit scheme that discriminates among its employees on the basis of race, 

religion, sex, or national origin violates Title VII regardless of whether third 

parties are also involved in the discrimination” it emphasized the extent of the 

involvement of the defendants in establishing and administering the discriminatory 

fringe benefit plan in reaching that conclusion. Id. at 1088–89 (Marshall, J., 

concurring). Indeed, the Supreme Court noted the extensive involvement of 

Arizona’s Governing committee in establishing the fringe benefit plan including 

the fact that it invited insurance companies to submit bids outlining the terms on 

which they would supply benefits, selected the companies that were to participate 

in the plan, and entered into contracts with them governing the terms on which 

benefits were to be provide to employees. Id. It was only “under these 

circumstances” that the Supreme Court held “there can be no serious question” that

the state was responsible for the discriminatory terms of the fringe benefit plan.

463 U.S. at 1089 (Marshall, J., concurring).

Indeed, courts that have based employer liability on participation in third 

party programs that are discriminatory, emphasize the fact that the employer in 

those situations had some control over the terms of the program and therefore can 

be said to have perpetuated that discrimination. See Morgan v. Safeway Stores, 

Inc., 884 F.2d 1211, 1214-15 (9th Cir. 1989) (collecting authorities holding the 

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same). The Ninth Circuit’s decision in Morgan is directly on point. There, the 

Ninth Circuit held that Safeway was not responsible for alleged discriminatory 

features of the Safeway Credit Union benefit offered to employees because the 

grocery store did not participate in the discriminatory program. Id. at 1215–16. The 

Ninth Circuit held as much because there was no evidence of the participation of 

Safeway in establishing or maintaining the credit union’s alleged discriminatory 

policy. Id. Safeway did not specify the terms of the program by contract, as in the 

Norris case, it did not require its employees to participate in the alleged 

discriminatory program, it did not establish conditions for receiving the benefits, 

and it did not develop the terms of the program. Id.

Just as in Morgan, the FDC Defendants and the Public Defender have no 

involvement in the development of the state health care plans challenged in this 

action. The FDC and the Public Defender are defined as state agencies under 

Section 110.123, which reserves the administration and authority for the state 

health care plans, including engaging in all of the key indicia of participation 

outlined by the Norris and Morgan courts, to DMS. The Amended Complaint does 

not plead any facts demonstrating that the Public Defender or the FDC Defendants 

solicited any plan terms, established any plan terms, entered into any contracts 

with service providers or were part of the process for establishing or administering 

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the state health plans. Simply put, “participation” and control over the state health 

plan on the part of these defendants has not been alleged or pled.

Any invitation that the Article III standing requirement, an important 

prudential requirement that speaks to the heart of this Court’s jurisdiction over the 

subject matter of a dispute, can be premised on the Norris case must be rejected as 

inapposite as applied here. Indeed, the plaintiff in the Morgan case argued that 

“participation” in the allegedly discriminatory third party program does not require 

an active role on the part of the employer relying on the Ninth Circuit’s own 

precedent in Norris v. Arizona Governing Comm. for Tax Deferred Annuity and 

Deferred Comp. Plans, 671 F.2d 330 (9th Cir.1982), which would go on to the 

Supreme Court, as cited supra. The Ninth Circuit plainly rejected this argument, 

noting that the State of Arizona could be held liable because it took an active role 

in administering and developing the program, adopted the plan, and entered into a 

contract governing the terms of the plan, thus specifically agreeing to them. 

Morgan, 884 F.2d at 1214-15, n. 1. That active participation was lacking in the 

Morgan, and it is lacking here.

To be sure, the injury need not be “the very last step in the chain of 

causation” to be fairly traceable to the defendant, but the conduct of the defendant 

must have at least been a step in that chain. Bennett v. Spear, 520 U.S. 154, 168-69

(1997). In Bennett, the plaintiff was found to have standing to sue a federal agency 

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that issued an advisory opinion, because the advisory opinion amounted to a 

“determinative or coercive effect upon the action of someone else” leading to 

injury. Id. at 169. Indeed, while another agency took ultimate action in the Bennett

case, the exceptional circumstances of the advisory opinion led to a finding that the 

injury was fairly traceable to the agency issuing that advisory opinion. Id. at 168-

171. In Bennett, the government admitted that the specific advisory opinion at

issue had a powerful and coercive effect on the action of agencies playing a central 

role in the agency’s decision-making process. Id. at 169. Agencies bore the burden 

of articulating in its administrative record why it decided to go against the advisory 

opinion and they carried a substantial risk in disregarding the advisory opinion 

because it opened itself up to criminal and civil penalties in those circumstances. 

Id. at 169-170. In fact, the advisory opinion at issue in Bennett contained an 

“incidental take statement” that provided that an action was not approved unless it 

was “in compliance with this incidental take statement,” and warning that “[t]he 

measures described below are nondiscretionary, and must be taken.” Id. at 170-71.

This is hardly a situation in which the FDC Defendants or the Public 

Defender caused Plaintiffs an injury by taking an action that had a “determinative 

or coercive effect upon the action of someone else.” Rather, DMS solely controls 

the State Group Health Insurance Plan and its terms.

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The allegations in the Amended Complaint simply do not meet the bar for 

standing in this Circuit as recently articulated by the Eleventh Circuit. Jacobson v. 

Fla. Sec'y of State, 957 F.3d 1193 (11th Cir. 2020) (holding that plaintiffs lacked 

Article III standing to sue Secretary of State for dispute over election ballot 

ordering where “Florida law expressly gives a different, independent official 

control over the order in which candidates appear on the ballot”). Indeed, a 

plaintiff lacks standing to challenge a rule if an independent source would have 

caused her to suffer the same injury. Swann v. Sec'y, Georgia, 668 F.3d 1285, 

1288–89 (11th Cir. 2012); Charles Alan Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice and Procedure § 3531.5 (3d ed. 2008) (“Rather than a 

break in one causal chain, standing may be defeated by finding a different cause.”).

Here, the Plaintiffs’ injury is attributable to DMS, and not fairly traceable to the 

FDC or Secretary Inch or the Public Defender, meriting dismissal of all counts 

pled against these defendants.

b. Plaintiffs’ Injuries Are Not Redressable by the FDC Defendants or the 

Public Defender 

For an injury to be redressable “it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 

U.S. at 561. “Redressability is established . . . when a favorable decision ‘would 

amount to a significant increase in the likelihood that the plaintiff would obtain 

relief that directly redressed the injury suffered.’” Mulhall v. UNITE HERE Local 

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355, 618 F.3d 1279, 1290 (11th Cir. 2010) (quoting Harrell v. Fla. Bar, 608 F.3d 

1241, 1260 n.7 (11th Cir. 2010)). Courts must be able “to ascertain from the record 

whether the relief requested is likely to redress the alleged injury,” Steele v. Nat'l 

Firearms Act Branch, 755 F.2d 1410, 1415 (11th Cir. 1985), and if they cannot, 

then there is no jurisdiction to entertain the action. See DiMaio v. Democratic Nat'l 

Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (dismissing complaint for lack of 

standing because it did not “suggest in any way how [the] ‘injury’ could be 

redressed by a favorable judgment”).

Plaintiffs seek, inter alia, equitable relief in the form of permanent 

injunctive relief against all of the defendants to: (1) cease enforcement of the State 

Plan Exclusion of coverage for “gender reassignment or modification services and 

supplies”; and (2) provide benefits that cover Plaintiffs’ asserted medically 

necessary gender affirming care. (Doc. 34 pp. 62-63). Again, as DMS is the 

singular controlling entity as to the determination and administration of the state 

health plans as provided pursuant to Chapter 110 Fla. Stat., a favorable decision 

against the FDC Defendants or the Public Defender will do nothing to redress the 

Plaintiffs’ alleged injuries. The FDC Defendants and the Public Defender have no 

power or authority to require DMS to alter the group health insurance plans already 

in effect. Moreover, the FDC Defendants and the Public Defender could not 

compel or require DMS, notwithstanding the current plans in effect, to provide 

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funds that cover the benefits the Plaintiffs seek, nor do the FDC Defendants have 

any authority to commit state funds for such use.

In fact, the FDC, Secretary Inch, and the Public defender are statutorily 

prohibited from doing so as the state of Florida has exclusively made it the 

province and authority of DMS to control such terms. See section I(a), supra. The 

Eleventh Circuit’s opinion in Jacobson is on point. There, the Eleventh Circuit 

found that relief ordered against Florida’s Secretary of State could not redress the 

injury caused by the decision to order candidate names on a ballot in a certain way 

because nonparty supervisors of election, over whom the Secretary did not have 

any pertinent control, were responsible for ballot ordering. 957 F.3d 1193. No 

factual allegations have been pled to suggest such control exists in the instant 

matter.

Ultimately, even if the Plaintiffs are successful in the counts against the FDC

Defendants or the Public Defender, the harm suffered by the Plaintiffs cannot be 

redressed by these defendants. As such Plaintiffs lack Article III standing to sue 

the FDC Defendants and the Public Defender. See Doe, 344 F.3d at 1285–86 

(holding that injuries suffered by plaintiff in custody proceeding by virtue of 

criminal statute would not be redressed through lawsuit against the Alabama 

Attorney General where injunctive relief against the Attorney General would have 

done nothing to change the result the plaintiff suffered in the state court custody 

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proceeding and nothing that the court could order the Attorney General refrain 

from doing would address the harm suffered); Hollywood Mobile Estates, 641 F.3d 

at 1265–67 (holding plaintiff could not establish standing against Secretary of the 

Interior because plaintiff failed to show how a judgment against the Secretary 

would redress the harm caused by a third party).

II. Counts VII and VIII, Asserting Equal Protection Clause Violations, are

Barred by the Doctrine of Sovereign Immunity 

Counts VII and VIII, brought pursuant to Section 1983, are lodged against 

Secretary Inch in his official capacity and Mr. Thomas in his official capacity, 

respectively, and allege a deprivation of rights under the Equal Protection Clause 

of the Fourteenth Amendment. This claim however is barred by the Eleventh 

Amendment, and, while technically styled as an Ex Parte Young claim, that legal 

fiction should not apply here. 

“Dual sovereignty is a defining feature of our Nation's constitutional 

blueprint.” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). “Upon 

ratification of the Constitution, the States entered the Union ‘with their sovereignty 

intact.’” Id. (citation omitted). It is a fundamental concept of Federalism that states 

yield their sovereignty only with respect to matters exclusively assigned to the 

federal government. See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 

(1991). This concept underlies the Eleventh Amendment of the Constitution which 

limits the power of federal courts to hear certain lawsuits brought against states.

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See U.S. Const. amend. XI; P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

506 U.S. 139, 144-46 (1993). 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 . . ..” U.S. Const. Amend. XI.

The Amendment has been interpreted by the Supreme Court to forbid 

lawsuits brought by citizens of a state against their own state in federal courts 

under most circumstances. Congress may abrogate state sovereign immunity if it 

has unequivocally expressed its intent to abrogate the immunity and if it has acted 

pursuant to a valid exercise of power. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 

55 (1996). The doctrine of sovereign immunity has been interpreted to bar suits 

against an unconsenting state brought by private parties regardless of the nature of 

the relief sought. See id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

100 (1984).

Sovereign immunity, as embodied in the Eleventh Amendment, precludes 

actions brought pursuant to Section 1983 against state entities for money damages 

and for injunctive relief. Indeed, state entities and state officials sued in their 

official capacities are not “persons” subject to suit under Section 1983. See Will v. 

Mich. Dep't of State Police, 491 U.S. 58, 70–71 (1989). The state of Florida has 

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not waived its immunity to suits under Section 1983. See Gamble v. Fla. Dep't of 

Health & Rehab. Servs., 779 F.2d 1509, 1513-20 (11th Cir. 1986). 

Nevertheless, the Eleventh Amendment and the doctrine of sovereign 

immunity does not preclude suits against state officers in their official capacity for 

prospective injunctive relief when the state officers’ alleged actions are in violation 

of federal law. Ex Parte Young, 209 U.S. 123 (1908); Grizzle v. Kemp, 634 F.3d 

1314, 1319 (11th Cir. 2011). This is because such suits, including suits under 

Section 1983, are not treated as suits against the state itself. Will, 491 U.S. at 71 n. 

10.

The Ex Parte Young doctrine creates a legal fiction allowing a claim against 

a state officer to redress continuing violations of federal law. Verizon Md. Inc. v. 

Public. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, Ex parte Young

cannot “operate as an exception to ... sovereign immunity where no defendant has 

any connection to the enforcement of the challenged law at issue.” Summit Med. 

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999). Thus, before the 

exception applies, the “state officer [named as a defendant in his official capacity 

must have] the authority to enforce an unconstitutional act in the name of the 

state.” Id.

The Equal Protection Clause claims brought pursuant to Section 1983 

against Secretary Inch and Mr. Thomas in their official capacities must be 

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dismissed because, as state law makes clear, Secretary Inch and Mr. Thomas 

simply have no influence, effect, or authority to dictate the terms of the state health 

plans challenged by the Plaintiffs. Indeed, only if a state officer has the authority to 

enforce an unconstitutional act in the name of the state can the Supremacy Clause 

be invoked to strip the officer of his official or representative character and subject 

him to the individual consequences of his conduct. Summit Med. Assocs., P.C., 180

F.3d at 1341 (citing Ex Parte Young). Where the named defendant lacks any 

responsibility to enforce the statute or scheme at issue the real party in interest is 

the state and the suit remains barred by the Eleventh Amendment. Summit Med. 

Assocs. P.C., 180 F.3d at 1341.

The fact of the matter is that Secretary Inch, as the Secretary of the FDC, 

and Mr. Thomas, as the Second Judicial Circuit’s Public Defender, have no control 

over or authority over the provision of healthcare insurance coverage to state 

employees under Section 110.123. DMS is tasked by statute with establishing the 

health care plans for all state employees. Secretary Inch and Mr. Thomas are not 

authorized in any way to solicit bids for health insurance plans, establish 

exclusions, enter into contracts for the provision of healthcare coverage, or 

otherwise dictate to any state employee the contours of healthcare coverage. That 

is DMS’s responsibility. 

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This case is unlike those that have found a connection sufficient to support 

an Ex Parte Young claim. For example, the Eleventh Circuit in Luckey v. Harris, 

860 F.2d 1012, 1016 (11th Cir. 1988) held that personal action by the defendants

causing injury is not a necessary condition of injunctive relief against a state 

official in their official capacity, but that the official must still have been 

responsible for the action leading to the injury. While the defendants in that case 

contended that personal action on the part of the official sued was required to 

defeat Eleventh Amendment immunity, the court held all that was required was 

that the official was “responsible for the challenged action.” Id. at 1015. According 

to the Eleventh Circuit, the state officer sued must “by virtue of his office, ha[ve] 

some connection” with the unconstitutional act or conduct complained of whether 

that connection arises out of general law or is specifically created by the act itself. 

Id. at 1016. 

In relying on these holdings, the Eleventh Circuit found that the governor of 

Georgia and Georgia judges were proper official defendants in an Ex Parte Young

action challenging systemic deficiencies in the Georgia indigent criminal defense 

system resulting in constitutional deprivation. Id. at 1015-1016. This was because 

the governor was responsible for law enforcement in the state, charged with 

executing the laws faithfully, and had residual power to commence criminal 

prosecutions by state statute. Similarly, Judges were responsible for administering 

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the system of representation for indigent criminally accused defendants by state 

statute. This made them appropriate defendants against whom prospective relief 

could be ordered. Id. at 1016.

But this is not a case where alleged deficiencies in a system are being 

challenged against those that are responsible for the system. By statute, neither 

Secretary Inch nor Mr. Thomas has any responsibility for the establishment of the 

state health plans. Far from “some connection,” they have no connection to the 

harm alleged by the Plaintiffs.

Because Secretary Inch and Mr. Thomas lack the authority to establish the 

state health plan or enforce any exclusion that Plaintiffs allege caused them harm, 

the fiction of Ex Parte Young simply does not hold water. See Osterback v. Scott, 

782 F. App'x 856, 858–59 (2019) (holding that suit against the Governor of Florida 

in his official capacity was barred by sovereign immunity and not subject to Ex 

Parte Young exception because, while the Governor had constitutional and 

statutory authority to enforce the law and oversee the executive branch, the 

responsibility for the enforcement of a challenged provision rested with the 

Division of Administrative Hearings). The non-fiction is that the Amended 

Complaint is a suit against the state, and the challenges lodged against Secretary

Inch and Mr. Thomas in their official capacities are barred by the doctrine of 

sovereign immunity.

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Compliance with Rule 15(a) 2, Fed. R. Civ. P., and N.D. Fla. Loc. R. 15.1

Defendants have consulted with Plaintiffs’ counsel and have received 

written consent to the filing of this Amended Motion to Dismiss. 

Conclusion

For the foregoing reasons, the FDC Defendants and the Public Defender

request that this Court dismiss Count’s III, IV, VII, and VIII of the Amended 

Complaint, with prejudice.

Respectfully submitted this 23rd day of June, 2020. 

/s/ Mark K. Logan

MARK K. LOGAN

Florida Bar No. 0494208

E-mail: mlogan@sniffenlaw.com

JEFFREY D. SLANKER

Florida Bar No. 100391

E-mail: jslanker@sniffenlaw.com

MICHAEL P. SPELLMAN

Florida Bar No. 937975

E-mail: mspellman@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Attorneys for the FDC Defendants and the

Public Defender

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WORD COUNT CERTIFICATION

This document complies with the word limits set forth in N.D. Fla. Local 

Rule 7.1(F), and contains 5,731 words, which includes all portions of this motion, 

even those permitted to be excluded from this word count by Local Rule.

/s/ Mark K. Logan

MARK K. LOGAN

CERTIFICATE OF SERVICE

The undersigned certifies that on this 23rd day of June, 2020, a true and 

correct copy of the foregoing was electronically filed in the U.S. District Court, 

Northern District of Florida, using the CM/ECF system which will send a notice of 

electronic filing to all counsel of record.

/s/ Mark K. Logan

MARK K. LOGAN

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