IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LILLIAN FRIESON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06CV791-MEF

)

STATE OF FLORIDA, et al., )

)

Defendants. )

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Lillian Frieson, proceeding pro se, brings this action against the State of

Florida, the Florida Department of Highway Safety & Motor Vehicles, the Florida Highway

Patrol, and two unnamed defendants, Officer Jane Doe and Officer John Doe, both

“Pensacola Florida Highway Patrol Officer[s].” This action arises from a motor vehicle

accident which occurred in Escambia County, Florida, on September 4, 2002. Plaintiff

asserts that the defendant officers, who responded to the accident, violated her rights under

the First, Fifth, and Fourteenth Amendments of the United States Constitution by: (1) telling

plaintiff to “shut up”; and (2) failing to conduct a field sobriety test on the driver of the other

vehicle, who was then under the influence of alcohol. Plaintiff contends that the officers

discriminated against her because of her race. She alleges that the State of Florida and the

two state agencies – Department of Highway Safety & Motor Vehicles and the Florida

Highway Patrol – are liable as the employers of the defendant officers because of their failure

to train the officers and because the action of the officers implements a governmental custom

or policy. Plaintiff seeks an award of damages in the amount of $2,000,000.00, plus interest

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and costs.

Plaintiff’s claims against the State of Florida, the Florida Department of Highway

Safety & Motor Vehicles, and the Florida Highway Patrol are barred by the Eleventh

Amendment. “The Eleventh Amendment renders the States immune from ‘any suit in law or

equity, commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects

of any Foreign State.’” Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 1985 (2004).

The state’s Eleventh Amendment immunity extends to agents and instrumentalities acting

as an “arm of the state.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). Plaintiff

does not indicate whether she sues the officers in their official capacities. To the extent that

she does, however, the officers in their official capacities are legally the same entities as the

offices they represent – i.e., the State of Florida and the defendant state agencies. See Will

v. Michigan Department of State Police, 491 U.S. 58, 71 (1989)(“[A] suit against a state

official in his or her official capacity is not a suit against the official but rather is a suit

against the official’s office. As such, it is no different from a suit against the State

itself.”)(citations omitted). 

Courts have recognized three exceptions to Eleventh Amendment immunity: (1) where

a state has expressly waived its immunity; (2) where Congress has abrogated the immunity

pursuant to section five of the fourteenth amendment; and (3) where prospective injunctive

relief is sought in a suit challenging the constitutionality of a state official’s action. Carr v.

City of Florence, 916 F.2d 1521, 1524 n. 2, 1524-25 (11th Cir. 1990)(citing Atascadero State

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 The statute provides, in pertinent part: “[T]he court shall dismiss the case at any time if the

court determines that . . . the action or appeal– (i) is frivolous or malicious, (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune

from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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Hospital v. Scanlon, 473 U.S. 234, 238 (1985) and Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 100, 102 (1984)). 

Plaintiff brings federal constitutional claims pursuant to 42 U.S.C. § 1983. The State

of Florida has not waived its Eleventh Amendment immunity, nor has Congress abrogated

that immunity in § 1983 cases. Williams v. Robbins, 2005 WL 2714501 (11th Cir. Oct. 24,

2005)(citing Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d

1509, 1511 (11th Cir. 1986) and Schopler v. Bliss, 903 F.2d 1373, 1379 n. 4 (11th Cir.

1990)). Plaintiff does not seek injunctive relief. Accordingly, the State of Florida, the two

state agencies, and the officers in their official capacities are immune from liability on

plaintiff’s claims. Thus, as to these defendants, dismissal of the plaintiff’s claims prior to

service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1

Additionally, it is apparent that venue does not lie in this district. The applicable

venue statute provides:

A civil action wherein jurisdiction is not founded solely on diversity of

citizenship may, except as otherwise provided by law, be brought only in (1) a

judicial district where any defendant resides, if all defendants reside in the

same State, (2) a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part of property

that is the subject of the action is situated, or (3) a judicial district in which any

defendant may be found, if there is no district in which the action may

otherwise be brought.

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 This district has no connection to this action. The plaintiff resides in the Southern District

of Alabama.

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28 U.S.C. §1391(b). 

None of the defendants reside in this district, so plaintiff cannot rely on 28 U.S.C.

§ 1391(b)(1) to establish that venue is proper here. Additionally, venue is proper under

§ 1391(b)(3) in “a judicial district in which any defendant may be found,” only “if there is

no district in which the action may otherwise be brought.” Plaintiff alleges that both of the

unnamed officers are residents of Escambia County, Florida. However, even assuming that

any defendant “may be found” in this district, venue will lie in this district under

§ 1391(b)(3) only if there is no other district in which venue is proper. 28 U.S.C.

§ 1391(b)(2) provides that venue is proper in “a judicial district in which a substantial part

of the events or omissions giving rise to the claim occurred . . . .” According to the

complaint, the events and omissions giving rise to plaintiff’s claims all occurred in Escambia

County, Florida, within the Northern District of Florida. See 28 U.S.C. § 89(a). Since this

action may be brought in the Northern District of Florida, plaintiff cannot rely on

§ 1391(b)(3) to establish venue in this district.2

Upon consideration of plaintiff’s motion to proceed in forma pauperis (Doc. # 2), it

is ORDERED that the motion is GRANTED. 

Additionally, it is the RECOMMENDATION of the Magistrate Judge that:

(1) plaintiff’s claims against the State of Florida, the Florida Department of Highway Safety

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 The court concludes that it is inappropriate to dismiss the unnamed officers, in their

individual capacities, as “fictitious parties” at this time. See Dean v. Barber, 951 F.2d 1210, 1216

(11th Cir. 1992)(“Under the circumstances in this case, Dean should have been allowed to add

‘Chief Deputy of the Jefferson County Jail John Doe’ as a defendant.”). However, plaintiff is

advised that the Clerk of Court cannot serve these parties with the summons and complaint unless

and until plaintiff amends the complaint to identify them by name and provides addresses for

service. Plaintiff’s failure to do so in a timely manner may result in dismissal of this action. 

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& Motor Vehicles, the Florida Highway Patrol, and defendants Jane Doe and John Doe in

their official capacities be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B), as the claims

are barred by the Eleventh Amendment;3

 and (2) that this action be TRANSFERRED to the

United States District Court for the Northern District of Florida, the only court in which

venue is proper. 

The Clerk of the Court is ORDERED to file the Recommendation of the Magistrate

Judge and to serve a copy on the parties to this action. The parties are DIRECTED to file

any objections to the said Recommendation on or before September 22, 2006. Any

objections filed must specifically identify the findings in the Magistrate Judge's

Recommendation objected to. Frivolous, conclusive or general objections will not be

considered by the District Court.

Failure to file written objections to the proposed findings and recommendations in the

Magistrate Judge’s report shall bar the party from a de novo determination by the District

Court of issues covered in the report and shall bar the party from attacking on appeal factual

findings in the report accepted or adopted by the District Court except upon grounds of plain

error or manifest injustice. Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144,

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1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE, this 8th day of September, 2006.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

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