IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

PATRICIA GARNER-RUSSO, }

 et al. }

}

Plaintiff, }

}

v. } CASE NO. 2:06 CV-06-626-A

}

STATE OF ALABAMA DEPARTMENT }

OF HUMAN RESOURCES, DR. PAGE }

WALLEY, et al. }

}

Defendant. }

MOTION TO DISMISS

COMES NOW Defendants, State of Alabama Department of Human Resources,

Dr. Page Walley and Kimberly Mashego, employees of the Alabama Department of

Human Resources, by and through the undersigned counsel, and respectfully moves this

Honorable Court to dismiss the Plaintiff’s Complaint in this action. As grounds therefore

the Defendants show unto the Court the following:

I. PLAINTIFF’S CLAIMS.

II. RULE 12(b)(6) STANDARD.

III. ARGUMENTS

A. PLAINTIFF STATES NO FEDERAL CAUSE OF ACTION

B. PLAINTIFF’S FEDERAL CLAIM AGAINST DEFENDANT

STATE OF ALABAMA DEPARTMENT OF HUMAN RESOURCES IS

BARRED BY THE ELEVENTH AMENDMENT TO THE U. S.

CONSTITUTION AND BY SOVEREIGN IMMUNITY.

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 1 of 10
C. PLAINTIFF LACKS STANDING TO PURSUE CLAIMS.

I. PLAINTIFF’S CLAIMS

The Plaintiff’s Complaint is extremely vague and very confusing. It appears that

she is attempting to allege a criminal violation involving the postal system, a non-specific

violation of her civil rights, and a criminal conspiracy against her rights. Additionally, the

Plaintiff has cited several sections of the Alabama Code Civil Practice title.

II. RULE 12 (b)(6) STANDARD

Under Rule 12(b)(6), Fed. R.Civ.P., dismissal of the complaint for failure to state

a cause of action is appropriate when no construction of the factual allegations of the

complaint will support the cause of action. Marshall County Board of Education v.

Marshall County Gas District, 992 F.2d 1171, 1174 (11th Cir., 1993). The Court may

dismiss the complaint only if it is clear that no relief could be granted under any set of

facts in support of it claims. Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d

1577, 1579 (11th Cir., 1986). It has been held that the consideration of “matters outside

the pleadings[s]” under Rule 12 triggers the notice provisions of Rule 56(c). McBride v.

Sharpe, 25 F.3d 962, 968 (11th Cir., 1994). Moreover, when a pro se litigant is involved,

Rule 56(c) has been interpreted to require that the district court specially inform the

litigant (1) of the need to file affidavits or other responsive materials and (2) of the

consequences of default. See United State v. One Colt Python .357 Cal. Revolver, 845

F.2d 287, 289 (11th Cir., 1988); Farred v. Hicks, 915 F.2d 1530, 1534 (11th Cir., 1990).

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 2 of 10
III. ARGUMENTS

A. PLAINTIFF STATES NO FEDERAL CAUSE OF ACTION

The Federal rules of Civil Procedure require that a complaint contain a “short and

plain statement of the claim that will give the defendant fair notice of what the plaintiff’s

claim is and the ground upon which it rests.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct.

99, 2 L.Ed.2d 80 (1957). Even under the notice rules of pleading, the complaint must

state a cause of action sufficient to affirmatively show that the Plaintiff is entitled to

relief, for:

[I]t is not enough to indicate merely that the

plaintiff has a grievance but sufficient detail must

be given so that the defendant, and the Court, can

obtain a fair idea of what the plaintiff is

complaining, and can see that there is some legal

basis for recovery.

Moore’s Federal Practice, § 8.13 (2d ed. 1984).

In civil rights actions, courts have recognized that more than conclusory notice

pleading is required. In civil rights actions, the United States Court of Appeals for the

Eleventh Circuit has held that a complaint will be dismissed as insufficient where the

allegations it contains are vague and conclusory. Fullman v. Graddick, 739 F.2d 553

(11th Cir. 1984); see also, Burnett v. Short, 441 F.2d 405 (5th Cir. 1971); Geudry v. Ford,

431 F.2d 660 (5th Cir. 1970); Granville v. Hunt, 441 F.2d 9 (C.A. Fla 1969). Plaintiffs

provide only conclusory allegations of constitutional violations without stating with

particularity which constitutional rights have been violated. None of Plaintiffs’ claims

are stated with sufficient particularity to withstand a motion to dismiss.

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 3 of 10
“ ‘Unsupported conclusions of law or of mixed fact and law have long been recognized

not to prevent a Rule 12(b)(6) dismissal.’ “Dalrymple v. Reno, 334 F.3d 991, 996 (11th

Cir.2003) (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n. 16 (11th Cir.2001)).

A valid civil rights claim, especially when defended with immunity, requires more than

conclusion. See Dalrymple, 334 f.3d at 996-97; Gonzalez v. Reno, 325 F.3d 1228 C.A.

11(Fla.) 2003. The complaint in this case contains many conclusory allegations, but,

even considered en grosse, the conclusions of support no claim against the Defendant.

See, e.g., Dalrymple, 334 F.3d at 996-97; Gonzalez, 325 F.3d at 1235.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 U.S. (2002) does state

that pleadings need only satisfy the requirements of Rule 8 of the Federal Rules of Civil

Procedure. However, the Eleventh Circuit has interpreted Swierkiewicz to preserve some

minimal pleading standard in civil rights actions so that unsupported conclusions of law

or of mixed law and fact are not sufficient to withstand a dismissal under Rule 12(b)(6).

Jackson v. BellSouth Telecomm., 372 F.3d 1250 (11th Cir.2004), quoting Wagner v.

Daewoo Heavy Indus. Am. Corp., 289 F.3d 1268, 1271 (11th Cir.2002), rev’d on other

grounds, 314 F.3d 541 (11th Cir.2002)(en banc). The effect of the Swierkiewicz decision

has been summarized as follows.

Swierkiewicz does not vacate a minimal pleading standard

for discrimination complaints. The requirement in Rule 8

for a “short and plain statement of the claim showing that

the pleader is entitled to relief” means that the specified

allegations of fact or law must provide fair notice to the

defendant of the nature of the plaintiff’s claim and its

factual underpinnings. Allegations must be buttressed by

sufficient facts at least to show that a claim for relief is

viable. While the court has a “duty to liberally construe a

plaintiff’s complaint’, that obligation is not “the equivalent

of a duty to re-write” the pleading. Peterson v. Atlanta

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 4 of 10
House. Auth., 998 F.2d 904, 912 (11th Cir. 1993), quoting

Conley v. Gibson, 355 U.S. at 47.

Thomas v. Alabama State Department of Mental Health and Mental Retardation, ___ F.

Supp 2d , 2005 WL 1389875 (M.D. Ala. June 10, 2005). 

Plaintiff has merely set forth a list of grievances involving various individuals

some of whom are employees of the Department and others who are not. None of the

grievances cited rise to the level of a cause of action 

B. THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY

BAR PLAINTIFF’S ANY FEDERAL CLAIM AGAINST DEFENDANT

STATE OF ALABAMA DEPARTMENT OF HUMAN RESOURCES. 

The Eleventh Amendment to the Constitution of the United States 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, or by Citizens or subjects of any Foreign State.” U. S. CONST. Am. XI.

The Amendment also applies to suits in federal court against a state by its own citizens.

See Hans v. Louisiana, 134 U.S. 1, 18-19, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The

protection provided to states by the Eleventh Amendment has been extended to protect

state entities, see Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100,

104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“suit in which the State or one of its agencies or

departments is named as defendant is proscribed by the Eleventh

Amendment...regardless of the relief sought”), and state officials in their official

capacities, see Kentucky v. Graham, 473 U.S. 159, 166-167, 105 S.Ct. 3099, 87 L.Ed.2d

114 (1985). Essentially, the Eleventh Amendment creates a sovereign immunity for suit

in federal court, which the states enjoy unless it has been surrendered. See Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 266-267, 117 S.Ct. 2028, 138 L.Ed.2d 438

(1997) “[A]n assertion of Eleventh Amendment immunity must be resolved before a

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court may address the merits of the underlying claims.” Seaborn v. State of Florida,

Department of Corrections, 143 F.3d 1405 (11th Cir. 1998). 

The Eleventh Amendment to the Constitution of the United States is a

jurisdictional bar to a suit against an unconsenting state in federal court. Hans, supra;

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252

(1996). Generally, the Eleventh Amendment is a complete bar to lawsuits brought in

federal court against a state or state agency by individuals. Halderman, 465 U.S. at 98-

100, 104 S.Ct. at 906-908 (Eleventh Amendment bar to suit against state and state

agencies applies “regardless of the nature of the relief sought.”). See Edelman v. Jordan,

415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 1356, 39 L.Ed.2d 662 (1974). Additionally,

in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the United

States Supreme Court held that actions for injunctive relief against a state or its

instrumentality’s were not an exception to the Eleventh Amendment bar. 

Plaintiff seeks not only money damages, against Defendant State of Alabama

DHR, but also apparently declaratory judgment, and injunctive relief as well. The federal

courts have also held that the Eleventh Amendment prohibits actions for injunctive relief

against state agencies by its citizens. Wright v. Butts, 953 F.Supp. 1352, 1358 (M.D.Ala.

1996) (Eleventh Amendment bars injunctive relief against Department of

Transportation); see also Stevens v. Gay, 864 F.2d 113 (11th Cir. 1989) (Eleventh

Amendment bars injunctive relief against Board of Corrections); United States v. State of

Alabama, 791 F.2d 1450 (11th Cir. 1986) (Eleventh Amendment bars injunctive relief

against State Board of Education). 

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 6 of 10
To ascertain whether an entity is an arm of the state, the Court must examine state

law. Brown v. East Central Health District, 752 F.2d 615, 617 (11th Cir. 1985). By

statute, the state and county Departments of Human Resources have sovereign immunity.

ALA.CODE § 38-2-8 (1975); Mitchell v. Davis, 598 So.2d 801 (Ala. 1992) (“DHR and the

BCDHR [Barbour County DHR], as State agencies, can assert the defense of absolute

immunity from suit.” (Parenthetical information added)); see also Ross v. State of

Alabama, 893 F.Supp. 1545 (M.D.Ala. 1995) (holding that by statute the “Houston

County DHR is a division of the State Department of Human Resources and operates

under its direction. Thus, the Court concludes that the Houston County DHR is a state

agency for purposes of the Eleventh Amendment.”).

In Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989), the Alabama Supreme Court

stated as follows: 

Article I, § 14, Alabama Constitution of 1901, is the

basis for sovereign immunity in this State, and the section

provides that “the State of Alabama shall never be made a

defendant in any court of law or equity.” Under this

provision, the State and its agencies have absolute

immunity from suit in any court. Barnes [v. Dale], 530

So.2d [770] at 781 [(Ala. 1978)]; Hickman v. Dothan City

Board of Education, 421 So.2d 1257, 1258 (Ala. 1982);

Gill [v. Sewell], 421 So.2d [1196] at 1198 [(Ala. 1978)];

and Milton [v. Espey], 356 So.2d [1201] at 1202 [(Ala.

1978)]. 

(Parenthetical information added.) “The State’s immunity bars suits for relief by way of

mandamus or injunction, no less than suits for any other remedy.” Taylor v. Troy State

University, 437 So.2d 472, 474 (Ala. 1983) (emphasis added). In Mitchell v. Davis, 598

So.2d 801, 806 (Ala. 1992), the Alabama Supreme Court held that “DHR [the Alabama

State Department of Human Resources] and the BCDHR [Barbour County Department of

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 7 of 10
Human Resources], as State agencies, can assert the defense of absolute immunity from

suit.” (Parenthetical information and emphasis added.) Thus, Defendant State of

Alabama DHR is entitled to sovereign immunity in this case and dismissal from all

action.

C. PLAINTIFFS LACK STANDING TO PURSUE CLAIMS

“The federal courts are confined by Article III of the Constitution to adjudicating

only actual ‘cases’ and ‘controversies.’ ” Malowney v. Federal Collection Deposit

Group, 193 F.3d 1342 (11th Cir. 1999) (citing Allen v. Wright, 468 U.S. 737, 750

(1984)). “The Article III case or controversy requirement sets fundamental limits on the

federal judiciary’s power in our society.” Id. “One of the most important of these

constitutionally-based limits is the requirement that a litigant have ‘standing’ to invoke

the power of a federal court.” Id. “ ‘In essence, the question of standing is whether the

litigant is entitled to have the court decide the merits of the dispute or of particular

issues.’ ” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “In order to

demonstrate that a case or controversy exists to meet the Article III standing requirement

when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts

from which it appears there is a substantial likelihood that he will suffer injury in the

future.” Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Cone Corp. v.

Florida Dep’t of Transp., 921 F.2d 1190, 1205 (11th Cir. 1991)). “The injury must be

‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” Cone Corp., 921 F.2d at 1204

(quoting Lyons, 461 U.S. at 102). “[S]tanding is a preliminary jurisdictional matter,”

which may be asserted on motion to dismiss or summary judgment. E.F. Hutton & Co.

Inc., v. Hadley, 901 F.2d 979, 984 (11th Cir. 1990). 

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 8 of 10
RESPECTFULLY SUBMITTED, this 30th day of August 2006.

TROY KING, KIN047

ATTORNEY GENERAL

SHARON E. FICQUETTE, FIC001

ASSISTANTATTORNEY GENERAL

/s/ Michael C. Joiner________

MICHAEL C. JOINER – JOI003

Assistant Attorney General

State of Alabama

Department of Human Resources

P. O. Box 304000

Montgomery, Alabama 36130-4000

Telephone: (334) 242-9330

Fax:(334) 242-0689

ATTORNEY FOR DEFENDANTS

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I have served a copy of the foregoing

MOTION TO DISMISS upon the following by placing a copy thereof, addressed to her

as indicated below, in U.S. Mail, first class postage prepaid, on this the 30th day of

August 2006.

Patricia Garner-Russo

710 Augusta Farm Road

Waynesboro, VA 22980 

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 9 of 10
\s\ Michael C. Joiner 

MICHAEL C. JOINER – JOI003

Assistant Attorney General

State of Alabama

Department of Human Resources

P. O. Box 304000

Montgomery, Alabama 36130-4000

Telephone: (334) 242-9330

Fax: (334) 242-0689

ATTORNEY FOR THE DEFENDANTS

Case 2:06-cv-00626-WHA-DRB Document 21-3 Filed 08/30/2006 Page 10 of 10