FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 11, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15328

Non-Argument Calendar

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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. 

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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:
 We will not consider Alyshah’s argument, raised for the first time in his reply brief, that

1

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

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. After review, we affirm. 1

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).
3

“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.