Opinion
No. 18-10285
12-21-2018
DELORES NEELY, Plaintiff - Appellant, v. GEORGIA DEPARTMENT OF HUMAN RESOURCES, Robyn A. Crittenden, CEO, Defendant - Appellee.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 1:17-cv-02980-LMM Appeal from the United States District Court for the Northern District of Georgia Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges. PER CURIAM:
Delores Neely filed this pro se 42 U.S.C. § 1983 action against the Georgia Department of Human Resources. She alleges several violations of federal law by the Department against herself and her son, Jerel Jay Neely, and seeks monetary damages. But because the Department is a state agency, and the state has not consented to the suit or waived its sovereign immunity, the district court dismissed her claim as barred by the Eleventh Amendment to the U.S. Constitution. After review, we affirm the district court's dismissal.
I
In 1995, Ms. Neely lived in a two-bedroom apartment with her son. The apartment was subsidized by the Atlanta Housing Authority, and Ms. Neely relied on child support payments to make her rent. She alleges that she did not receive those payments for three months, and her apartment's leasing office refused to accept a payment directly from her son's father. Ms. Neely alleges that the she told the apartment representatives and the Atlanta Housing Authority that she would commence with a "grievance process," and soon after the apartment evicted her and threw her food and possessions on the front and back lawns.
After the eviction, Ms. Neely and her son lived in a house with several boarders. After an altercation with another boarder who Ms. Neely suspected of engaging in suspicious activity with her son in a bathroom, Ms. Neely was detained by the police. Her son was soon after placed in foster care by the Dekalb County Juvenile Court and Division of Family and Children Services.
Ms. Neely alleges that the officials with the Dekalb Juvenile Court then prolonged the custody processes in bad faith. This delay, she alleges, exacerbated her son's preexisting physical and mental difficulties. She also alleges two other incidents of improper behavior: (1) an incident where a Georgia state officer removed her son by transporting him in a police car instead of an ambulance, even though he was sick and injured; and (2) an incident with her son's new foster parents where Jerel was instructed not to call Ms. Neely his mother.
Ms. Neely filed suit against the Georgia Department of Human Resources. Her complaint included allegations against the Fulton and Dekalb County Departments of Family & Children Services, and the Fulton and Dekalb County Departments of Child Support Enforcement & Recovery. She alleged several claims of unconstitutional deprivations of due process relating to her son and their eviction, as well as invasion of privacy and false arrest. She requested injunctive relief "to be measured in dollar amounts" of $3,944,000 plus attorneys' fees.
The Department moved to dismiss the suit for failing to raise a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It argued, among other things, that the district court did not have subject matter jurisdiction over the case because the Department is a state agency and thus entitled to sovereign immunity under the Eleventh Amendment. The district court agreed and granted the defendant's motion to dismiss. Ms. Neely appealed.
II
We review whether an entity is entitled to sovereign immunity under the Eleventh Amendment de novo. See Nichols v. Alabama State Bar, 815 F.3d 726, 732 n.4 (11th Cir. 2016). The Eleventh Amendment prevents private individuals from suing states—and those agencies and departments that are considered "arms of the state"—for monetary damages, unless the state consents to be sued, has waived its immunity, or Congress has abrogated the state's immunity. Id. at 731.
Ms. Neely does not contest that the Department is an arm of the state. Instead, she argues that the Department "voluntar[ily] and involuntar[ily]" waived its sovereign immunity by engaging in "unconstitutional acts and practices." Appellant's Initial Br. at 1; Appellant's Reply Br. at 1.
But "waiver" in this context does not mean that the government has sacrificed its right to sovereign immunity by engaging in unconstitutional acts. Sovereign immunity is a privilege that the state may choose to give up—it cannot be done involuntarily. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999). And there is no evidence here that Georgia or the Department have chosen to waive their sovereign immunity. Nor has Congress abrogated Eleventh Amendment immunity for § 1983 claims. See Nichols, 815 F.3d at 731. Therefore, the Department is entitled to sovereign immunity.
V
The District Court properly dismissed this action for lack of subject matter jurisdiction because the claims are barred by the Eleventh Amendment. Accordingly, we affirm.
AFFIRMED.