[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13193

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-00062-CG-N

LINDA CONE SELENSKY,

 Plaintiff-Appellant,

versus

STATE OF ALABAMA,

 Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Alabama

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(July 22, 2015)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

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This appeal addresses the district court’s dismissal of plaintiff-appellant’s 

pro se complaint for frivolity and lack of subject matter jurisdiction under 28 

U.S.C. § 1915(e)(2)(B).

I. BACKGROUND

Plaintiff-appellant Linda Selensky (“Selensky”) believes that the State of 

Alabama (“Alabama”) wrongfully arrested and held her for criminally trespassing

on property she claims she purchased from a man named Robert E. Duke 

(“Duke”).

1

 While in jail, some of her pets died and Duke allegedly set her house 

on fire. As a result of her arrest, she also has a “criminal record which is all 

bogus.” 

She previously filed an action against Duke in Alabama state court, which 

was unsuccessful. She also filed a misconduct complaint with the Mobile County 

Sheriff’s Office relating to a deputy’s response to her complaints about Duke. The 

Sheriff’s Office determined that there was no improper conduct on the deputy’s 

part. Selensky then turned to the federal courts for relief. 

Selensky filed a pro se complaint in the Southern District of Alabama on 

February 14, 2014 against Alabama, alleging “false imprisonment, civil rights 

violation [sic], fraud and corruption.” Selensky’s complaint quotes, without 

 

1

 The basis of Selensky’s complaint has to be pieced together from various documents 

she attached to the complaint, including documents relating to previous litigation against Duke in 

Alabama state court.

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explanation, portions of the Eighth, Thirteenth, and Fourteenth Amendments of the 

United States Constitution, portions of the Alabama Constitution relating to the 

rights of criminal defendants, and the Alabama statute of limitations, Alabama

Code § 6-2-34. In what manner her rights were violated, and what Alabama’s role 

in the violations was, is not made clear beyond her allegation that she was not 

guilty of the criminal trespass charge because the property was hers. Selensky

does not present any specific plea for relief in her complaint, beyond her request 

for her “just reward.” 

Because Selensky also filed a motion to proceed in forma pauperis, her case 

was automatically referred to a magistrate judge for screening pursuant to 28 

U.S.C. § 1915(e)(2)(B), which mandates dismissal of any case that “(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.” The 

magistrate judge issued a report and recommendation (“R&R”) on April 7, 2014, 

recommending that the action be dismissed.2

 The magistrate judge noted that 

Selensky “does not identify a single individual in connection with her claims or 

declare the basis on which she contends this Court has subject matter jurisdiction 

over her action.” The sole defendant named in the action is Alabama, and 

Selensky identified no grounds upon which Alabama’s Eleventh Amendment 

 

2

 The magistrate judge also noted that Selensky had filed four previous actions in that 

court, all of which had been dismissed with prejudice. 

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sovereign immunity had been waived or abrogated. The magistrate judge next 

noted that Selensky “failed to specify a jurisdictional basis for her action, or plead 

facts that would reflect a federal cause of action.” Thus, the R&R recommended 

that Selensky’s suit is “due to be dismissed with prejudice both for lack of subject 

matter jurisdiction and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) 

because the sole defendant is immune from suit.” 

Selensky filed objections to the R&R. Other than stating that her “case isn’t 

frivolous are [sic] malicious,” however, Selensky provided no actual rebuttal to the 

R&R’s conclusions. On June 3, 2014, the district court adopted the R&R and 

dismissed Selensky’s case with prejudice. It subsequently denied Selensky’s 

“motion for hearing,” which the district court construed as a motion for 

reconsideration. The district court also denied Selensky’s subsequent “motion to 

challenge court order.” Selensky appealed to this Court. 

II. STANDARD OF REVIEW

A district court’s sua sponte dismissal for frivolity under 28 U.S.C. 

§ 1915(e)(2)(B)(i) is reviewed for abuse of discretion. Miller v. Donald, 541 F.3d 

1091, 1100 (11th Cir. 2008). Dismissal for lack of subject matter jurisdiction is 

reviewed de novo. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).

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III. ANALYSIS

As with her complaint, Selensky filed an appellate brief that consists largely

of copies of briefs she filed in Alabama state courts in her action against Duke, 

with whom Selensky alleges she entered into an agreement to purchase real 

property.3

 She alleges that Duke gave her false information about the property. 

He also harassed her by piling dirt in the driveway, cutting down trees, having the 

power company turn off her lights, getting animal cruelty charges filed against her, 

having her mail delivery stopped, and ultimately burning her home. But Duke is 

not named as a defendant in this case, nor alleged to be a state official. The only 

link between Duke and Alabama is Selensky’s allegation that her mistreatment by 

Duke is part of “a conspiracy brought on by [her] [previous] lawsuits against the 

State of Alabama.” 

In proceedings in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(i) empowers a 

district court to dismiss suits that are frivolous. Napier v. Preslicka, 314 F.3d 528, 

531 (11th Cir. 2002). A suit is frivolous if it is without any merit in fact or law. 

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The district court determined 

that Selensky’s complaint was frivolous because it was clear that the Eleventh 

Amendment prevented her from proceeding against Alabama as a defendant.

 

3

 Alabama filed no brief on this appeal; nor did it file any responsive pleading in the 

district court.

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“[T]he Eleventh Amendment prohibits federal courts from entertaining suits 

by private parties against States and their agencies.” Alabama v. Pugh, 438 U.S. 

781, 781 (1978). There are two exceptions to this prohibition: where the state has 

waived its immunity or where Congress has abrogated that immunity. Virginia 

Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637-38 (2011). “A 

State’s consent to suit must be ‘unequivocally expressed’ in the text of [a] relevant 

statute.” Sossamon v. Texas, ___ U.S. ___, 131 S. Ct. 1651, 1658 (2011) (quoting 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984)). “Waiver 

may not be implied.” Id. Likewise, “Congress’ intent to abrogate the States’ 

immunity from suit must be obvious from ‘a clear legislative statement.’” 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (quoting Blatchford v. 

Native Vill. of Noatak, 501 U.S. 775, 786 (1991)).

Neither waiver nor abrogation applies here. The Alabama Constitution 

states that “the State of Alabama shall never be made a defendant in any court of 

law or equity.” Ala. Const. art. I, § 14. The Supreme Court has recognized that 

this prohibits Alabama from waiving its immunity from suit. Pugh, 438 U.S. at 

782 (citing Ala. Const. art. I, § 14.) Although Selensky cites no applicable federal 

statute that would indicate Congress’ intent to abrogate Eleventh Amendment 

immunity, insofar as she is alleging a violation of her civil rights, she would be 

proceeding under 42 U.S.C. § 1983; however, “Congress has not abrogated 

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eleventh amendment immunity in section 1983 cases.” Carr v. City of Florence, 

Ala., 916 F.2d 1521, 1525 (11th Cir. 1990) (citing Quern v. Jordan, 440 U.S. 332, 

345 (1979)). 

The district court was therefore correct in determining that Selensky’s case 

must be dismissed as frivolous, because there was no meritorious argument for 

why the court could entertain a suit against Alabama.4

 We affirm.

AFFIRMED. 

 

4

 Selensky also filed a motion for leave to supplement the record. The supplementary 

materials relate to prior lawsuits Selensky has filed in Alabama state courts, and have no bearing 

on our determination that Alabama’s Eleventh Amendment immunity has not been waived or 

abrogated. We therefore deny as moot Selensky’s motion for leave to supplement the record.

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